Possible Cause

April 25, 2011
/ Author: Rick

A story this morning at CBSnews.com is titled “Unprotected Wi-fi getting owners in trouble”.

What the story doesn’t do is explain the real reason the Wi-Fi owners are “unprotected.”

The United States used to have protection for these Wi-Fi owners, even before there was Wi-Fi. We called it “The Constitution of the United States of America,” or, sometimes just “The Constitution.”

The Constitution is the document that constituted, or brought into existence, the United States of America, prescribing what the form of government would be and how it would work.

The Founders of the United States of America were particularly concerned about excessive government and what we today would call “a police state.” So afraid of this were they that the Constitution almost was not approved. You see, it contained no statements expressly protecting the rights of the citizens against a police state; it contained no specific protection of liberty from a government that tries to do more than it should.

Some of the Founders — the “Federalists” — argued that this was unnecessary, since the government that was being created was one of limited powers. They said that the government’s limited powers would make it impossible for it to override the rights of the people.

The anti-Federalists disagreed. (This group actually should have been called “Federalists” because they wanted a truly federal form of government, but recognizing the power of “spin,” the folks we now call “Federalists” had already seized that name for themselves.) These so-called anti-Federalists worried that there was no Bill of Rights and that, combined with the “necessary and proper” clause in the Constitution, the government might decide it was “necessary and proper” to sometimes take away citizen rights. [1]I call that prescience!

And so the Bill of Rights was born. To clarify and correct this weakness in the original Constitution, the first ten Amendments to that Constitution expressly stated that no matter what else happened, there were certain lines the government just could not cross.

No matter what.

It turns out the Founders — specifically, the anti-Federalists (because without them, the United States would have no need to ignore the Bill of Rights today; the Bill of Rights just wouldn’t exist) — were right to fear the government. As you can see in the section titled “The Arguments” in this article, much of what the anti-Federalists feared has actually come true.

This, even though their fears resulted in the passage of a Bill of Rights expressly aimed at assuaging those fears by specifically forbidding the government from doing what was feared!

One of the ways our government has shunted aside the Bill of Rights is by declaring that it is difficult to understand. This isn’t true, unless you have an ax to grind. Anyone reading the Constitution can understand, among other things, that the Constitution — and particularly the Bill of Rights — was meant to place limits on the government and to maximize the liberty of individuals by ensuring that for the most part, the government had to leave them alone.

This is especially true of the Fourth Amendment, which is at issue in the story of the unprotected Wi-Fi owners.

Since the majority of people have never even seen the Fourth Amendment, let’s take a look at the words:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This is perhaps one of the most important protections built into the United States Constitution.

Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment….

This was true because the colonists of what would become the United States had, in fact, rebelled against their King in large part because he harassed them through what his government considered “reasonable” searches and seizures. But,

Reasonable search and seizure in colonial America closely approximated whatever the searcher thought reasonable. [2]Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868 (2006) p. 294, note 87.

The Founders clearly were unhappy with this state of affairs and thus birthed the Fourth Amendment to ensure it would not happen again. In plain language, they stated that we should feel secure in what belongs to us. In order to be secure, unreasonable searches — searches that were only deemed reasonable by the searchers — had to stop. Henceforth, searches would require “probable cause.”

Yet, now, much is made by the United States Supreme Court — which in the 1930s abandoned its role as interpreter and protector of the Constitution after being threatened by President Franklin D. Roosevelt — of the “difficulty” in understanding the Fourth Amendment.

Let me take a short side-trip here for a moment, to amplify that idea.

The abandonment of the Constitution of the United States as a document limiting the power of government began in earnest with Franklin D. Roosevelt’s threats against the United States Supreme Court. [3]There is an easy argument that it began much sooner, but I’m writing a blog post; this is not a history tome. However, the government we know today pretty much came into being with Roosevelt. Roosevelt wanted to abandon the libertarian principles — for that is exactly what they are — upon which our government was founded.

There is no real question of how much power the United States government actually has, though. The Founders of the United States of America, and every person who voted to ratify the United States Constitution, favored a limited form of government; they were tired of government poking itself into their lives, searching their homes, seizing their goods, violating their inalienable rights to life, liberty, and the pursuit of happiness. Under the common sense understanding of the Constitution, the federal government they thus established has limited powers.

But Roosevelt wanted more power. There is — and was — a legitimate way for a President to obtain that power when, as happened then, the United States Supreme Court points out that the Constitution, as written, does not allow it. As Jacob Hornberger notes,

Roosevelt had an option that he could have pursued to circumvent the Supreme Court, one that the Constitution itself provided. [4]Emphasis added. To achieve the economic revolution that he sought, he could have pursued an amendment to the Constitution, one in which he formally asked the American people to reject the free-market way of life on which the U.S. had been founded and to accept a socialist and interventionist economic system.

Instead, he deceitfully led the American people into believing that this new economic system would actually “save” freedom and free markets, despite the fact that its welfare-state and regulatory principles were directly contrary to those of a free-enterprise system, that is a system free of government control and interference.

Even worse, once he realized that the Supreme Court was interfering with his plans by simply doing its job, he proposed his infamous plan in which he sought to pack the Supreme Court with his judicial cronies, so as to have the necessary votes to sustain the constitutionality of his programs.

Although Roosevelt’s plan failed — many people saw it for the power grab that it was — it scared the shit out of the United States Supreme Court, and they capitulated. From that time forward, the limits on the power of the United States government written into the Constitution of the United States ceased to exist. [5]Emphasis added.

Or, more accurately, they were “reinterpreted” into the vestigial shadows of their former selves that they are today.

A rose by any other name may smell as sweet, but the reinterpreted Constitution of the United States simply stinks.

For, to return to our story about the unprotected Wi-Fi owners, what sane person can call this reasonable?

Lying on his family room floor with assault weapons trained on him, shouts of “pedophile!” and “pornographer!” stinging like his fresh cuts and bruises, the Buffalo homeowner didn’t need long to figure out the reason for the early morning wake-up call from a swarm of federal agents.

The homeowner — who could have been killed if an agent decided (Update 2/12/2017: Link broken) any of his fear-driven movements were “furtive” — insisted upon his innocence.

And he was telling the truth.

For two hours that March morning in Buffalo, agents tapped away at the homeowner’s desktop computer, eventually taking it with them, along with his and his wife’s iPads and iPhones.

Within three days, investigators determined the homeowner had been telling the truth: If someone was downloading child pornography through his wireless signal, it wasn’t him. About a week later, agents arrested a 25-year-old neighbor and charged him with distribution of child pornography. The case is pending in federal court.

If we had something like, oh, a Fourth Amendment of some kind of Constitution of the United States, this Wi-Fi owner would not have been “unprotected.”

But we don’t live in such a world. The Constitution of the United States died a long time ago; the Amendments have been withering on their dead base ever since. You cannot poison the base of a tree and expect its outer branches to survive long.

As noted above, according to our Supreme Court, it’s just too difficult to understand these weird-ass limitations on government.

Searches and seizures are an opaque area of the law: flagrant Fourth Amendment abuses will rarely escape detection but there is a vast twilight zone with respect to which one Justice has stated that our own ‘decisions . . . are hardly notable for their predictability,’ and another had observed that this Court was “bifurcating elements too infinitesimal to be split.” Serious Fourth Amendment infractions can be dealt with by state judges or by this Court on direct review. But the nonfrivolous Fourth Amendment claims that survive for collateral attack are most likely to be in this grey, twilight area, where the law is difficult for courts to apply, let alone for the policeman on the beat to understand. [6]Schneckloth v. Bustamonte, 412 U.S. 218, 269-270, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), concurring opinion of Blackmun, J., footnotes deleted.

That frickin’ Fourth Amendment. It’s just too difficult to understand. We can’t have that kind of burden falling on the poor “policeman on the beat.” Placing the burden of getting it right before busting into someone’s home armed to the teeth on the government…that will just never do.

No. Nope. It’s the private individual who must bear the burden of making sure the police don’t make these kinds of mistakes.

Whether you’re guilty or not, “you look like the suspect,” said Orin Kerr, a professor at George Washington University Law School, who said that’s just one of many reasons to secure home routers.

Ah, Orin Kerr. That great defender of the Constitution those who consider the Constitution a nuisance.

What about the whole question of probable cause, Orin? [7]Arizona v. Gant, 556 U.S. __, 129 S.Ct. 1710, 1720-1721, 173 L.Ed.2d 485 (2009); People v. Thompson, 38 Cal.4th 811, 817, 135 P.3d 3 (2006). Doesn’t that count for anything? After all,

The agent identified the IP address, or unique identification number, of the router, then got the service provider to identify the subscriber.

Investigators could have taken an extra step before going inside the house and used a laptop or other device outside the home to see whether there was an unsecured signal. That alone wouldn’t have exonerated the homeowner, but it would have raised the possibility that someone else was responsible for the downloads.

That doesn’t sound like probable cause; it sounds like possible cause. They could have done some investigation. The investigation allegedly would not have exonerated the homeowner — he would not have been proven innocent — but that is not the standard required by the United States Constitution. The Fourth Amendment doesn’t say “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, unless they haven’t been proven to be innocent.” Nor does the Fourth Amendment contain the idea that the government may perform searches based upon possible cause.

But that, of course, is exactly why we no longer follow the United States Constitution. Because requiring anything more than possible cause means more work for the government.

After a search of his devices proved the homeowner’s innocence, investigators went back to the peer-to-peer software and looked at logs that showed what other IP addresses Doldrum [i.e., the person they accused the homeowner of being] had connected from.

Say what?! You mean that further investigation did, in fact, exonerate the homeowner?

I’d say this case shows that requiring the government to honor and respect the limits placed upon it by the United States Constitution gives us probable cause — not just possible cause — to believe that this might be one way to protect our non-technologically-savvy Wi-Fi owners.


1I call that prescience!
2Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868 (2006) p. 294, note 87.
3There is an easy argument that it began much sooner, but I’m writing a blog post; this is not a history tome. However, the government we know today pretty much came into being with Roosevelt.
4, 5Emphasis added.
6Schneckloth v. Bustamonte, 412 U.S. 218, 269-270, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), concurring opinion of Blackmun, J., footnotes deleted.
7Arizona v. Gant, 556 U.S. __, 129 S.Ct. 1710, 1720-1721, 173 L.Ed.2d 485 (2009); People v. Thompson, 38 Cal.4th 811, 817, 135 P.3d 3 (2006).

Did you enjoy this post? Leave a comment below! And if you haven’t already subscribed, click the button and get my free ePamphlet on “How to Hire a Criminal Defense Lawyer.”

Leave a Comment

Your email address will not be published. Required fields are marked *