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Third Amendment’s the charm: unlikely protection from NSA

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Many critics have charged that the federal government is violating the Constitution with its myriad surveillance programs.

Law professor and blogger Glenn Harlan Reynolds may be the first to propose that the part of the Constitution being violated is the Third Amendment.

The Third Amendment’s requirement that “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.”

While the prohibition evokes for most an image of British soldiers taking advantage of unfavored colonists’ homes and hospitality, Glenn Harlan Reynolds argued in a USA Today op-ed that it may be a new frontier for fighting the National Security Agency’s bulk collection of phone and Internet records.

With documents from on-the-run leaker Edward Snowden revealing NSA programs which cast a much wider net in collecting and keeping phone metadata and Internet records than previously believed, the spy agency and its helpers have been the subject of public outrage in recent months.

Objections to government surveillance programs have typically received criticism under the Fourth Amendment’s prohibition of unreasonable searches and seizures and its requirement that judicial warrants be issued based on probable cause.

When the Bill of Rights was written, Reynolds contends, the government had to put a soldier in a person’s home in order to spy on them, but today it seems every federal agency has new ways of obtaining and tracking information about U.S. citizens without a physical presence.

The NSA’s broad and until now, secret, collection of phone and Internet records may cross the line against invading private homes. Government leaks throughout the summer have revealed NSA programs which collect metadata from telephones in bulk (the program’s authority was renewed just last Friday), video and audio conversations from Skype and data from the servers of leading Internet companies including Microsoft, Google, Yahoo and others.

“As the U.S. Court of Appeals for the Second Circuit said in one of the few Third Amendment cases ever to be heard, the Amendment was designed to assure a fundamental right of privacy,” Reynolds wrote. If the right to privacy within one’s own home is enshrined by the troop-quartering Amendment, then why shouldn’t the Third protect against “spyware on your computer or your cable modem?”

Interpretations of other constitutional provisions have been routinely updated to apply to modern technology, but the rather specific circumstances laid out by the Third Amendment have allowed it to fall by the wayside.

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