Because we are all suspects, we have "no reasonable expectation of privacy"!

Yesterday, Glenn Reynolds linked a very thoughtful discussion of the Fourth Amendment by Julian Sanchez, which I think everyone who cares about the topic should read. It's an eloquent reminder that the Fourth Amendment is not merely a remedy for accused criminal suspects seeking to get the results of illegal searches suppressed and their charges thrown out. While the Amendment is a sentence long, all too often (because courts naturally focus on litigation arising out of criminal charges) we focus on the secondary "no Warrants shall issue, but upon probable cause" part and forget the dominant, primary language:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated
Sanchez notes that the jurisprudential focus on what is called "privacy" has neglected the right of the people to be secure in their persons, houses, papers and effects, and looks at a better approach:
An alternative approach--more firmly anchored in the text of the Fourth Amendment, and yielding something more closely resembling a genuine standard--is offered by Yale's Jed Rubenfeld in his article "The End of Privacy," which I wrote about last year. Rubenfeld's Big Idea is that we have ignored the crucial role of "security" in the Fourth Amendment. We're now accustomed to arguments over the "tradeoff" between the competing values of "security" and the "privacy" protected by the Fourth Amendment, but by its own terms, the Fourth Amendment stipulates that "the right of the people to be secure...against unreasonable searches and seizures, shall not be violated." We tend to read this, in effect, as simply saying that the right against unreasonable searches and seizures shall not be violated--so that the words "people" and "secure" don't end up doing any real work. But as Rubenfeld notes, "security" was actually a significant legal concept in the minds of the Framers--something free people enjoyed by contrast with the insecurity generated by arbitrary and discretionary government power. Returning to the question of informants, consider the type of insecurity experienced by East Germans under the Stasi, as illustrated in the magnificent film The Lives of Others. The effect of that kind of total surveillance state was not limited to those who were actually being informed upon or wiretapped, because the terrifying reality was that you could never be sure. Any call might be recorded; any friend or colleague or lover might actually be on the payroll of the secret police. This knowledge could wreak havoc on interpersonal intimacy and chill potential dissent even for those whose individual privacy was never actually invaded.

To think of the Fourth Amendment this way--as not exclusively about privacy, but about "the right of the people to be secure"--is necessarily to take a more architectural view of its protections. But Rubenfeld offers something closer to an applicable test: Rather than asking whether an individual reasonable expectation of privacy has been violated, we ask whether people would remain secure in their liberties if a particular search method were pervasive. If it would not, we ask what restrictions--such as requiring a probable cause warrant or "specific and articulable facts"--would sufficiently narrow the method's application so as to leave reasonable citizens secure.

What happens is that when the government creates systems that are invasive of the security of people's homes, papers and personal effects, the courts have ratified the evil by dismissively acknowledging that because these routine invasions happen to everyone, that there is therefore "no reasonable expectation of privacy."

Which means, ultimately, that if the government puts everyone under surveillance, it can then assert that there is no reasonable expectation of privacy, and thus the "right of the people to be secure in their persons, houses, papers, and effects" simply disappears.

Sorry, but that shocks me to the core. I think it is truly Orwellian. What could be more Orwellian than using surveillance to justify surveillance?

Once we take away your privacy then you have no reasonable expectation of it.

Unfortunately, when I read the Sanchez piece yesterday, it was so late in the day that I simply lacked the energy to revisit an issue I raised, but under-discussed in a previous post about invasive and overinclusive roadside drug testing.

And I do mean under-discussed. Damn it, I am not a think tank with endless resources and a research staff. I'm just a 56 year old man with a limited amount of energy typing my opinions on a computer. It grieves me that I cannot do this topic justice. But let me back up to the roadside saliva testing bill. Once they pass that (which I am sure they will), then Michigan residents will have no reasonable expectation of privacy in their bodily fluids. Not just while driving, for as I pointed out, these tests don't test just for whether a person is presently intoxicated; they search for the presence of metabolites which can linger for many days. So we all become criminal suspects whose bodily fluids can be searched by the state, without a warrant, for past drug consumption.

What about the right of the people to be secure in their persons? In light of such legislation, can any such right be said to exist any more? Aand as if the roadside saliva testing wasn't not bad enough, just as I finished my post, I stumbled onto a possibly even worse violation of our right to be secure.

I barely had time for a hurried update:

Naturally, this Orwellian bill is bipartisan.

MORE: Just saw this Drudge headline:

Database Dangers...
Factor in roadside drug testing, and they'll have an additional reason to go fishing through people's medical records.

You'd almost think we didn't have the Fourth Amendment. (Much less privacy.)

The Nanny State Liberation Front has more, and patient advocates are calling this development "a devastating blow to privacy rights."

Unfortunately (again, because of the limited time I have in the day) I did not realize when I saw the story that the "devastating blow" was a done deal before the North Carolina cops' latest demand to see the list of citizens' names. The done deal consisted of the creation of a Prescription Drug Monitoring Database in most (meaning nearly all) states. Urged on by the DEA and an organization I had never heard of called the National Alliance for Model State Drug Laws, which runs the Prescription Drug Monitoring Project. These people are activists ("bipartisan" naturally) who have systematically been lobbying to get these laws passed basically at the behest of the DEA.

Since its inception, NAMSDL has assisted states with efforts to address to diversion of, abuse of, misuse of, and addiction to prescription drugs. In fiscal year 2003, the Drug Enforcement Administration and the Bureau of Justice Assistance designated NAMSDL as the technical assistance provider for the Harold Rogers Prescription Drug Monitoring Program. NAMSDL continues to assist states with legislative and policy questions related to Prescription Drug Monitoring Programs (PMP's). For assistance with programmatic and operational questions about PMP programs please contact the Alliance of States With Prescription Monitoring Programs at
It is typically required that the PMP (also called PDMP) databases electronically compile the following information:
* First and last names and middle initial
* Date of birth
* Full address
* Drug identification by national drug code number for drug prescribed
* Date drug was prescribed
* Date drug was dispensed
* Quantity of drug dispensed

Pharmacy and practitioner information

* Identification of dispensing pharmacy
* Identification of practitioner who prescribed the drug

Florida's PDMP website recites the typical reasoning behind the database creation. To prevent "diversion" as well as "doctor shopping":
# FS 893.055 creates the Prescription Drug Monitoring Program (PDMP): and the accompanying Public Records law FS 893.0551 limiting access to confidential and private information in the PDMP database.
# Establishes the Patient Advisory Report (PAR) for use by practitioners to alert them of patients that are possibly "doctor shopping."
# Requires dispensing practitioners to report dispensed II - IV controlled drugs to the database electronically no later than 15 days from the date of dispensing.
# Allows practitioners to request access to the patient's prescription history information during office visit to ensure better patient standard of care, avoid prescribing medications that may be dangerous when taken in combination and identify possible "doctor shoppers"
So the North Carolina database that's causing all the fuss is merely typical. These databases have been surreptitiously established in most states over the past few years.

If you have had a pain killer prescribed by a doctor, a dentist, or a podiatrist, your name is most likely on one. Does that make you feel secure in your houses, papers, and effects?

There is a serious point that is being lost that I cannot stress enough here. The Fourth Amendment was violated by the creation of these databases. Once they are there, the mischief will only begin. The longer they're in place, the more busybodies (and organized busybody groups) will appear wanting to know whose name is in them. Lawyers, insurance companies, employers, political dirt diggers, even parents wanting to know whether their child's teacher or child care provider is possibly "on drugs."

Thanks to the under-the-radar lobbying efforts by the groups that sneaked these database laws through, few people knew about their creation, and fewer still had an opportunity to object. I like to think I keep myself informed about what is going on, but I had no idea -- just as I was asleep when certain wood became a federal felony.

The creepiest thing is not that this stuff makes me feel paranoid; it's that it makes me feel that I am not being paranoid enough. There are too many government encroachments like this, and it just isn't possible to keep up with them.

One of the few voices to speak up against these unconstitutional databases has been Bob Barr. I stumbled onto a piece he wrote in March that I had never seen, but which makes me wish I had voted for him for president:

Federal and state drug agencies want Georgia to create a database of doctors who prescribe pain medications, pharmacists who fill prescriptions for pain medications, and patients who receive prescription pain medications. And law enforcement agencies are employing a full-court press in the General Assembly to get what they want. Whether they succeed against a coalition of state senators and representatives concerned about such a privacy-invasive database, remains very much up in the air as the General Assembly enters the home stretch of its 40-day session. Hanging in the balance is the question of whether law enforcement and regulatory agencies across the state and across the nation will have ready access to Georgia citizens' private medication records -- to be analyzed, cataloged and manipulated in ways they will never know.

It isn't that law enforcement is interested in data basing every prescription a doctor writes and which a pharmacist fills; at least not yet...

Well, it didn't take long, did it? Anyone could have seen this latest move by law enforcement coming once the database was there, but how many people saw or realized that the problem was in its initial creation?

At least Barr tried to stop it, but he's a lone voice against a relentless juggernaut. Because some patients are criminal drug diverters and abusers of the system, the idea is to treat all patients as suspects:

Granted, these pain medications obviously can be and are abused (as are many medications that do not appear on the federal list); and some people do obtain bogus prescriptions for them, or collect multiple prescriptions and have them filled at different pharmacies in order to disguise the large quantity of the pills they are obtaining. However, the solution being touted by the federal Drug Enforcement Administration (DEA), by the Georgia Drugs and Narcotics Agency, and by similar law enforcement agencies across the country, is the typical one preferred by government at all levels - monitor everybody in order to catch the [relatively] few abusers.

Leaving aside for the moment the fundamental principle that what a doctor prescribes for a patient should be the concern of the doctor and his patient, and not law enforcement or government regulators, the bill pending before the Georgia General Assembly (currently, SB 418) to create a mandatory electronic database to monitor prescription drugs, sweeps far too broadly and raises serious privacy and other constitutional concerns.

I wish more people could grasp the idea that the Fourth Amendment is violated by the database's creation.

But if what I have seen in the legal system is any indication, what I expect will happen is that it won't be the database and its violation of the rights of all the people in it that will be challenged. Instead, individual criminals will be arrested (say, some drug-dealing thug is caught selling morphine he diverted from his cancer-stricken grandmother), and he will say that the use of the database to catch him violated his Fourth Amendment rights. And because the Fourth Amendment has in practice become little more than a remedy for accused criminals, the legal wrangling by a particular thug (and whether the evidence against him should be thrown out) will be seen as "the issue," while the violated rights of millions are ignored.

So, along with Julian Sanchez, I don't think the founders ever meant the Fourth Amendment to be limited in such a narrow way.

But of course, how could they have known that there would be a "War on Drugs." Much less that it would degenerate into a war on pain relief, and that all citizens' bodily fluids and their medical records subject to search -- any "right of the people to be secure" notwithstanding.

What good is a right of the people if the people have no way to assert it?

AFTERTHOUGHT: The worst thing about writing a post like this is the feeling that these encroachments on the rights of citizens have all become so terribly routine.

Is tyranny supposed to be that way? Stultifying and dull in the hope that people lose interest?

MORE: Aside from Fourth Amendment considerations is the government intrusion into the once-confidential nature of the doctor-patient relationship by encouraging outside parties to second guess a doctor's treatment regimen.

In light of Obamacare, perhaps the ruling bureaucrats think physician-patient confidentiality no longer matters.

posted by Eric on 09.15.10 at 12:10 PM


The irony is that before joining the Libertarian Party, Barr was a consummate drug warrior.

I did a bit on The Origins Of The Fourth Amendment.

My understanding is that it was in part a limit on the power of government to impose duties by giving smugglers protection from blanket warrants. i.e. a protection for black marketeers who would circumvent excessive government duties.

Violated totally by the drug war.

M. Simon   ·  September 15, 2010 2:00 PM

So the deal is: in my opinion the Fourth WAS designed to protect a class of economic criminals.

Think: Smuggler John Hancock and his sloop Liberty.

M. Simon   ·  September 15, 2010 2:11 PM

The tyrants won't back down until they fear for their lives.

They prosper by the tolerance of strangers.

Brett   ·  September 16, 2010 7:43 AM

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