Op-Ed

A redcoat solution to government surveillance

Efforts to halt the government's mass surveillance of ordinary citizens have taken two forms: urging Congress to do the right thing (something it rarely does anymore) or suing spy agencies under the 4th Amendment (which prohibits most warrantless searches and seizures). Neither strategy has been particularly effective.

Perhaps another route is available, using an amendment so rarely cited that the American Bar Assn. called it the "runt piglet" of our Constitution. It's the 3rd Amendment, which prohibits the federal government from lodging military personnel in your home.

Many Americans know that the 1st Amendment protects free speech and religious freedom, that the 2nd protects the right to bear arms and that others establish the right to a jury trial and freedom from cruel and unusual punishment. Very few know what the 3rd Amendment does, and understandably so. Since colonial times and the early days of the republic, no one has been routinely forced to feed and house soldiers. There has never been a Supreme Court case primarily based on the 3rd Amendment.

But let's examine whether a case may be made. The National Security Agency is part of the Department of Defense and therefore of our nation's military. By law, the NSA director must be a commissioned military officer, and per its mission statement, the NSA gathers information for military purposes. That's strong evidence that NSA personnel would qualify as soldiers under the 3rd Amendment.

And why did the framers prohibit the government lodging soldiers in private homes? Besides a general distaste for standing armies, quartering was costly for homeowners; it was also an annoyance that completely extinguished a family's sense of privacy and made them feel violated. Sound familiar?

The British could spy on American colonists by keeping soldiers among them. Today, the government can simply read your email. Centuries ago, patriots wrote angry letters about soldiers observing the ladies of the house at various stages of undress. Now, as John Oliver joked, the NSA can just view your intimate selfies.

If you're like me and you text your wife to pick up a gallon of milk, your smartphone is an integral part of internal household communication. And in an era when your refrigerator, your thermostat, your sprinklers and your TV connect to the Internet and gather data on your household habits, can it really be doubted that an intrusion into these systems is an intrusion into your home?

It is not a stretch to say that the military has lodged itself in your home when it invades your personal space on your devices. Indeed, if the 3rd Amendment only applied to real estate, it would be moot, since the 5th Amendment provides a mechanism for compensation when government uses property even briefly.

Technical reasoning aside, when the Supreme Court has interpreted the 3rd Amendment, it has emphasized privacy and the constraint of federal powers. In Griswold vs. Connecticut, the court stated the 3rd Amendment evinced the founders' belief that a person's home should be free from agents of the state. In Youngstown Sheet & Tube vs. Sawyer, the court mentioned the 3rd Amendment to support limiting executive power, even during crises. In Laird vs. Tatum, the 3rd Amendment was cited to support the notion that the military should have a limited role in civilian affairs. These themes remain relevant in the modern debate.

In the only case in which the 3rd Amendment was directly applied (to disallow stationing National Guardsmen in prison guards' housing during a prison guard strike), a federal appeals court decided that the "property-based privacy interests protected by the Third Amendment ... extend to those recognized and permitted by society as founded on lawful … possession with a … right to exclude others." Well, your computer is your property. You can exclude others from it with a password. So we shouldn't tolerate a branch of the military establishing itself there either.

I'm not alone in seeing the ever-expanding federal government's military-run surveillance as a modern form of quartering troops in our homes. Several mainstream but inventive constitutional law professors have argued that the 3rd Amendment applies to surveillance. Like me, they see that the ubiquitous incorporeal presence of a military agency in our household systems is as significant to us as the physical presence of redcoats was in the 1700s. Let's dust off the 3rd Amendment to make this point, and soon.

Mike Gatto is a lawyer and the assemblyman from California's 43rd District in Los Angeles County. He is the chairman of the Assembly's Consumer Protection and Privacy Committee.

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A version of this article appeared in print on September 29, 2015, in the Opinion section of the Los Angeles Times with the headline "The redcoat surveillance solution Can the amendment that bars soldiers from living in your house protect your email too?" — Today's paperToday's paper | Subscribe
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