Is the Fourth Amendment Now Illegal?

In my view the fourth amendment is routinely being violated by the federal government. But is the fourth amendment, in particular the right to be secure in one’s papers, now illegal? Maybe. Violations of the fourth amendment by the federal government encourage the use of encryption but that avenue may now being blocked. Lavabit, the secure email service used by Edward Snowden, has suddenly and mysteriously closed with the creator leaving this message:

I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on–the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.

Other secure email providers have also shut down.

Recently I asked for suggestions to add to the Bill of Rights. One of mine was:

Congress shall pass no law abridging the right of the people to encrypt their documents and effects. (Modern supplement to the fourth amendment.)

I guess that amendment isn’t going to pass. I should not be surprised. In 2003 I said the cyber-libertarians were naive to dream of a new world of privacy and liberty built on the foundations of the internet and public key cryptography. Sadly, I got that one right.

Hat tip: Lynne Kiesling.

Addendum: Here is a longer account of what may be going on with Lavabit. Key graph:

There are already two theories as to what a FISA order against Lavabit may have looked like. First, FISA could have ordered Lavabit to insert spyware or build a back door for the N.S.A., as American and Canadian courts reportedly did to the encrypted e-mail service Hushmail, in 2007. Second, FISA could have ordered Lavabit to permit the N.S.A. to intercept users’ passwords. But the truth may never come out.


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