Over at the Volokh Conspiracy, Orin Kerr has an informative post about an important Fourth Amendment decision out of the United States Court of Appeals for The Third Circuit. United States v. Katzin addresses, among other things, whether the Fourth Amendment requires police to get a warrant before installing a GPS on your car — the court says yes.
But inspired by tipster Patrick I want to focus on one line in the opinion by Judge Greenaway:
The Government contends that requiring a warrant prior to GPS searches would “seriously impede the government‟s ability to investigate drug trafficking, terrorism, and other crimes.” (Appellant Br. at 27.) We fail to see how such a conclusory assertion suffices to except GPS searches from the requirements of the Fourth Amendment‟s Warrant Clause. Doubtless, we are aware of the dangers posed by terrorism and comparably reprehensible criminal activity. However, we would work a great disservice by permitting the word “terrorism” (in the absence of any other information or circumstance) to act as a skeleton key to the liberties guaranteed under the Constitution. [emphasis added]
Judge Greenaway calls it a "skeleton key." I've called it an "airhorn issue." What is it? It's a concept — like "terrorism menaces us" and "think of the children!" and "drugs are bad" that is used as a substitute for principled legal analysis. Skeleton keys and airhorns are not so much argued as they are invoked, ritualistically, to justify government power. As Judge Greenaway implies, the government invokes them without principled support.
When the government and its supporters invoke "terrorism!", they often want to avoid three questions: (1) what evidence is there that this situation has anything to do with terrorism? (2) How will this power you are seeking actually reduce the danger of terrorism? (3) Have you supplied evidence showing that the need to fight terrorism is sufficient, under established constitutional law, to justify this particular infringement of rights?
That's why I call it an airhorn issue — it's calculated to drown out argument, not make an argument. "Terrorism" — like Think of the Children! and The Sourge of Drugs! and Cyberbullying! — is frequently used as a substitute for evidence or legal analysis. Why can the Department of Homeland Security get involved in online piracy? TERRORISM! Why can a police department get search warrants to discover the identity of someone who wrote satirical cartoons about it? CYBERSTALKING! Why can a state pass a law making it a crime to post mocking pictures? CYBERBULLYING! Why should registered sex offenders be required to register with their probation officer when they use a nickname to leave comments on a newspaper's web site? THINK OF THE CHILDREN!
Think critically. A word is not the same as the thing it purports to describe. Words are often arguments. Let us not be dupes who accept arguments uncritically, particularly when they are invoked to limit our rights. Words, used right, can be magical, in a colloquial sense. Think of "I love you" and "not guilty" and "Louis, I think this is the beginning of a beautiful friendship." But let's not stand by while the government and its supporters attempt to use words like magic invocations that grant power merely by their utterance. "Terrorism?" Prove it.
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