The Third Amendment, Privacy and Mass Surveillance

Abstract

We live in an era of mass surveillance. Advertisers, corporations and the government engage in widespread data collection and analysis, using such avenues as cell phone location information, the Internet, camera observations, and drones. As technology and analytics advance, mass surveillance opportunities continue to grow. The growing surveillance society is not necessarily harmful or unconstitutional. The United States must track people and gather data to defend against enemies and malevolent actors. Defenses range from stopping attempts to breach government computers and software programs, to identifying and thwarting potential terroristic conduct and threats at an embryonic stage. Yet, without lines drawn to limit mass data gathering, especially in secret, unchecked government snooping likely will continue to expand. A sitting Secretary of State even recently acknowledged that the government has “sometimes reached too far” with its surveillance. The stakes for drawing lines demarcating privacy rights and the government’s security efforts have never been higher or more uncertain. This paper argues that the forgotten Third Amendment, long in desuetude, should be considered to harmonize and intersect with the Fourth Amendment to potentially limit at least some mass government surveillance. While the Fourth Amendment has been the sole source of search and seizure limitations, the Third Amendment should be added to the privacy calculus because it provides a clear allocation of power between military and civil authorities and creates a realm of privacy governed by civil law. Consequently, in today’s digital world it would be improper to read the words of the Third Amendment literally, merely as surplusage. Instead, the Amendment’s check on government tyranny should be viewed as restricting cybersoldiers from focusing surveillance instrumentalities on and around private residences or businesses in an intrusive way – or using proxies to do so -- that would serve as the functional equivalent of military quartering in the civil community.