Part Three and Digital Privacy at Home

-- By GreggBadichek - 06 May 2016

Does the Third Amendment to the US Constitution offer a means of protecting against digital privacy violations? Though intended to preclude the possibility of the American government from stationing soldiers in civilian homes without consent, Part Three may offer a conditional layer of protection from governmental electronic surveillance as well.

I.Constructing Part Three

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

How can the text be read to cover the surveillant activities of an intelligence service such as the NSA or a military branch such as the Department of the Navy? Conceptually, it makes sense: technology unimaginable to the Framers of the Constitution permits agents of state violence to dwell in private homes digitally and remotely, through monitoring of cyber activities conducted via nodes within that home. Part Three has never been directly construed by the Supreme Court of the United States, though the Court has identified its bolstering a general right to privacy in the home. Thus we have a canvas on which to paint, but we must also muster support for the argument.

A. No Soldier

What is a Soldier? The plain meaning of the word is a uniformed military person representing the United States Armed Forces, and, according to at least the Second Circuit, to the armed forces of individual states as well. Standing armies were distrusted by a sizable faction of the Framers and were not commonplace in the late eighteenth century. The herein referenced Soldier therefore was more generally an agent of the state conducting the state's military activity. An intelligence service operator obtaining information for a military-intelligence complex, reporting to a military commander, providing military information, and working alongside both military and civilian personnel, falls under this broader historical definition.

This reading is limited in that it does not encompass private actors. A great deal of digital surveillance is conducted by private capitalistic forces through legally sold technology, the digital operations of which are legally consented to by the residents of the home, and perhaps its Owner. Thus even if private capitalistic actors monitoring data streams out of in-home devices could be considered quartered Soldiers, Owner consent would likely abrogate resultant Part Three claims.

B. shall . . . be quartered

Quartering would seem to the lodging of a human soldier. However, the Framers used the word quarter rather than “billet,” implying a reference to military imposition of law and governmental force on civilians through their personal property, rather than the mere physical placement of soldiers in homes. Thus the sense of quarter employed in Part Three is one of governmental imposition of military force.

C. in any house

A house is just that: a physical place of residence. The house contains the internet nodes that receive and transmit digital information to each other and to the Net. A soldier digitally quartered in a house, observing the electronic communication therein, would watch the physical, digital-relaying architecture sitting inside the house. The quartered soldier would look at information stored locally, such as web history, encryption keys, digital files, and any other information that would be viewable to a surveillant peaking inside of “any house.” Surveillance targeting servers off-premises or tapping into web traffic found in signals and wires outside the home would likely not occur “in any house,” nor require that Soldiers be quartered there in a manner violative of Part Three.

D. in time of peace . . . without the consent of the Owner

The necessity of consent indicates that the Part Three right can be waived. At the very least, the surveillant would need to provide notice to the Owner of the house that a Soldier were being digitally quartered there. The Owner likely need not be the registered owner of the property—as in Fourth Amendment jurisprudence, tenancy would suffice for ownership.

E. nor in time of war, but in a manner to be prescribed by law

If the nation were at “war,” domestic surveillance by quartered intelligence operators could in fact be authorized by Part Three. “War” would not necessarily require a Congressionally-declared war. The existence of Executive war powers and Congressional authorizations of the use of military force blur what would constitute war for these purposes, but would indicate an expansive reading. Prescription by law is unclear—were the relevant surveillance law to provide, in some sense, for domestic surveillance, a court could read it as sufficient. But as the “manner” of quartering would need to be prescribed, an argument could be made that the relevant law would need to detail the procedures of digital surveillance occurring within a home to comport with Part Three.

II. Some Big Caveats

Successfully construing Part Three in this manner would proscribe a limited amount of surveillance: it would not encompass in-home data collection by private actors, nor government surveillance of data flows outside of the home. It would protect though from government surveillance of locally held servers, computers, and data banks, functioning similarly to Part Four: if the government wishes to view encrypted bits stored in the home, it would need to receive the consent of the owner in times of peace, or legally prescribe such quartering in times of war.

III. Practicality

Thus Part Three could function like Part Four vis a vis digital information stored in boxes at home. Advantageously, Part Three would not permit warranted searches; short of Owner consent, surveillance on these bits would require 1. a time of “war,” and 2. obedience to a legally-prescribed manner. It may thus be that this reading of Part Three functions best to “assist” Part Four's protection of the home's physical space. Doing so may not greatly advance digital privacy, but it would become yet another legal advantage of decentralized networking, influencing people to harness that technology and secure their privacy.

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