B.2(l). Right to Privacy and Property

Every Person has the right to privacy and control over their body, home, digital and physical documents, communications, data, and property.

This sentence is a baseline. It sets up the basic right, which is an echo of the Fourth Amendment, [1] updated to include digital privacy. The founders were reacting to Writs of Assistance. They were general warrants that gave customs officials the power to search any premises. They didn’t have to specify what they were looking for, and they didn’t have to establish any probable cause. These writs were valid for the lifetime of the monarch. They could be transferred between officials. There was no judicial oversight. Worst of all, they gave officials a blank check to search anyone, anywhere. There was a principle in English law that “a man’s house is his castle.” The founders found that these writs violated that principle.

Today, we have cars, cell phones, computers, cloud storage, and email. It fails the common-sense test to suggest that the founders would not have seen these as falling within “persons, houses, papers, and effects” had they known these categories existed.

Searches or seizures—whether physical or digital—require a judicial Warrant based on Probable Cause, explicitly describing the place, device, data category, or item to be examined or taken.

The expansive scope granted by Writs of Assistance was a fundamentally tyrannical form of overreach. In response, they imposed a framework that required evidence supported by an oath, demonstrating probable cause. They also demanded specifics about what was to be searched, as well as who and what might be seized. All of this is straightforward and is a reasonable reaction to the fishing expeditions allowed under the Writs of Assistance. Every kid who has ever watched a crime procedural knows that police can’t search your home without a warrant.

But digital property sits in a different domain. Courts allow “consent” under police pressure. [1] They allow third parties to give consent. [2] Moreover, much of the data people share with third parties, such as bank records, cloud storage, and email headers, is not adequately protected or is less protected than physical goods. In United States v. Miller, the court found that there is no reasonable expectation of privacy in financial records shared with a bank.[3] Three years later, courts expanded that lack of privacy to what phone numbers an individual dials, because that information has been shared with the phone company.[4] In Carpenter v. United States, the Supreme Court created a narrow exception for cell phone location data. Though they ruled that the digital age requires some limits on third-party doctrine, they explicitly left the doctrine intact for most other applications.[5] In the wake of Carpenter v. United States, the requirements surrounding searches of cloud storage are in doubt.

A quick review of all these cases makes it clear. There needs to be constitutional protection for the digital age. This language establishes it. It explicitly states that digital searches and seizures require the same procedural justification and judicial warrant as physical ones.

---

[1] See Schneckloth v. Bustamonte, 412. U.S. 218 (1973), and United States v. Drayton, 536 U.S. 194 (2002).

[2] See United States v. Matlock, 415 U.S. 164 (1974) and Georgia v. Randolph¸ 547 U.S. 103 (2006).

[3] United States v. Miller, 425 U.S. 435 (1976).

[4] Smith v. Maryland, 442 U.S. 735 (1979).

[5] Carpenter v. United States, 585 U.S. ____ (2018).

---

[1] See U.S. Const. amend. IV.