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Thread: Why does the Fourth Amendment distinctly refer to “papers” prior to “effects”?

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    Why does the Fourth Amendment distinctly refer to “papers” prior to “effects”?

    Digital Searches and the Original Meaning of the Right to be Secure in One’s “Papers”

    University of San Diego law professor Donald A. Dripps has an important new article in the Journal of Criminal Law and Criminology: “Dearest Property”: Digital Evidence and the History of Private “Papers” as Special Objects of Search and Seizure (103 J. Crim. L. & Criminology 49 (2013)). (H/T Mike Ramsey at The Originalism Blog). In it, he presents a powerful case that the seizure of private papers by government authorities for later perusal was considered a distinct and equal injustice as that of issuing general (nonparticularized) warrants. As such, one’s papers merited much greater protections from seizures that one’s “effects” or personal property. Indeed the “seizure” of one’s papers for later perusal to find incriminating information therein had the hallmarks of the evils of general warrants. He then connects this historical analysis with contemporary debates over the seizure of digital information. Here is a bit from the Introduction: ...

    http://www.volokh.com/2013/08/18/dig...n-ones-papers/

    http://scholarlycommons.law.northwes...vol103/iss1/2/

    http://scholarlycommons.law.northwes...1&context=jclc 63 pages 763 KB Good reading
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    Quote Originally Posted by Nightmare View Post
    Digital Searches and the Original Meaning of the Right to be Secure in One’s “Papers”

    University of San Diego law professor Donald A. Dripps has an important new article in the Journal of Criminal Law and Criminology: “Dearest Property”: Digital Evidence and the History of Private “Papers” as Special Objects of Search and Seizure (103 J. Crim. L. & Criminology 49 (2013)). (H/T Mike Ramsey at The Originalism Blog). In it, he presents a powerful case that the seizure of private papers by government authorities for later perusal was considered a distinct and equal injustice as that of issuing general (nonparticularized) warrants. As such, one’s papers merited much greater protections from seizures that one’s “effects” or personal property. Indeed the “seizure” of one’s papers for later perusal to find incriminating information therein had the hallmarks of the evils of general warrants. He then connects this historical analysis with contemporary debates over the seizure of digital information. Here is a bit from the Introduction: ...
    Wow! Hadn't thought of that.

    Seize a fella's papers for later perusal. Meaning, seize them now without probable cause hoping to find evidence of a crime while perusing them later. A neat little trick to get around the probable cause requirement. Or, I would guess, more precisely, seize a fellas papers now on probable cause of one thing, while deliberately intending to later look for more criminating* evidence.


    *Today we say incriminating. In colonial times, the word was criminating. Same meaning. Somebody added a syllable along the way.
    Last edited by Citizen; 08-18-2013 at 07:39 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Quote Originally Posted by Citizen View Post
    Wow! Hadn't thought of that.

    Seize a fella's papers for later perusal. Meaning, seize them now without probable cause hoping to find evidence of a crime while perusing them later. A neat little trick to get around the probable cause requirement. Or, I would guess, more precisely, seize a fellas papers now on probable cause of one thing, while deliberately intending to later look for more criminating* evidence.


    *Today we say incriminating. In colonial times, the word was criminating. Same meaning. Somebody added a syllable along the way.
    Well that the current argument for gathering phone calls, and all the data that the gov't is collecting ... as long as its not looked at until PC is found, its OK.

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    Quote Originally Posted by davidmcbeth View Post
    Well that the current argument for gathering phone calls, and all the data that the gov't is collecting ... as long as its not looked at until PC is found, its OK.
    After reading James Bamford's The Shadow Factory, I concluded "if a technology exists, it will be abused by government."

    If they have the equipment they will misuse it. Its not a question of restraining government in its use. Its a question of denying government access to the technology, period. We knew already three years ago that No Such Agency was building a huge facility in the Utah or Nevada desert.


    Special thanks to the forum member who recommended that book to me. The Snowden revelations are not new. Bamford exposed them in that book, published in 2008 or 2009.


    We've known that No Such Agency collects all communications since 1948 or so--it came to light back in the 1970's or '80's. So, along comes the internet and e-mails and so forth. It was too easily predictable that the same agency would do everything in its power to collect the internet. Bamford (and now Snowden) exposed that it did. As far as I am concerned, every congressional committee member who did not deny funding is indictable for malfeasance in office. Malicious, deliberate, oppressive malfeasance.
    Last edited by Citizen; 08-18-2013 at 09:12 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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