Just before ALA Midwinter, I spoke to a class at Hampshire College. [I spoke on January 12. For now the syllabus for this inter-session class is still active. It is ambitious.] Visiting that school is a whole separate post (maybe), but the trip was much shorter than I expected.
I was talking about libraries and the USA PATRIOT Act. One of the students asked a question that made me do an "Oh, I never thought of it that way!" He asked if the USA PATRIOT act not only violated the First Amendment, but also the Fourth? For those who don't have this memorized, and want to keep reading, here is what the fourth amendment says:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
His most interesting argument was: are web site cookies today the equivalent of what the framers would have called "papers, and effects?" In the late 18th century the framers would not have even begun to think about computers, bits and bytes, browsers, and software. This amendment dealt with what they knew and says that "a person's home is their castle" and should be a place of privacy and only searched with probable cause.
As I have contemplated this over the past two weeks, I'm coming around to that thought. It seems to me [not a lawyer, don't play one on TV, either] that at the very least the FISA Courts and the National Security Letters violate the fourth amendment while additionally violating the first by the gag orders.