> Obviously you can argue that it was wrongly decided in the first instance, but that's a different argument.
Isn't it the same argument?
The thing that has changed over time is the nature, quantity and implications of the data held by third parties. Target now knows a daughter is pregnant before her father does, etc.
Against this level of knowledge stored by third parties, the third party doctrine eats the fourth amendment. Which means that "the proposition that the government has at least as much right to access your data for law enforcement purposes as AT&T does for billing purposes" has to be wrong. The principle is defective. Who you call is the business of the phone company because they have to route your calls; how does that make it the business of the government?
I agree with you, but this also doesn't seem (in my totally amateur reading) to actually be covered by the 4th amendment. If we really want this sort of privacy enshrined, we could really use a new amendment. It should be unsurprising that huge changes in society, like those of the internet age, would require fundamental changes to the Constitution - this is what amendments are for. This idea is laughably impractical though, which either suggests that amendments were made too difficult to achieve, or that the system is working well by making us wait for overwhelming consensus on the question.
> I agree with you, but this also doesn't seem (in my totally amateur reading) to actually be covered by the 4th amendment. If we really want this sort of privacy enshrined, we could really use a new amendment.
The First Amendment read literally would disallow laws against libel or copyright infringement or even fraud. On the other hand, read literally it would only protect "freedom of speech, or of the press" and provide no protection for electronic communications because they aren't spoken or printed. Literal readings are not useful.
There is very little a pro-privacy amendment would accomplish that couldn't reasonably be read into the first, fourth and fifth amendments already. The problem is not the constitutional language, the problem is what the courts are letting the government get away with.
I'm not suggesting that the amendments should be read literally, I'm suggesting that in this particular case there is very reasonable difference of opinion about what should and shouldn't constitute people's papers, effects, and private property for the purposes of federal law, and it could use to be cleared up by people who are elected.
There is always a very reasonable difference of opinion about what a given constitutional provision actually means.
The reason amending the constitution is hard is that it's meant to act as a check on "people who are elected." Take a look at the amendments since the bill of rights.
11: Sovereign immunity for states
12, 15, 17, 19, 20, 22, 23, 24, 25, 26, 27: Changes to voting rights, elections and issues related to elected officials
13: Abolish slavery
14: Post civil war amendment, reduction in power of the states, new enforcement powers for federal government
16: Grants Congress the power to levy income tax
18: Prohibition (repealed by 21)
Congress hasn't voted to meaningfully reduce federal power in over 200 years.
Not always, but sure, often. That doesn't mean it is pointless to ever bother writing anything down. Just like the difficulty of passing an amendment is a check on the legislature's ability to grant themselves more power, the possibility of doing so is a check on the judiciary's ability to make laws mean whatever the current court wants them to mean.
But if your point is that privacy advocates have a better chance of success through the avenue of a broad interpretation of the fourth and fifth amendments than through a new amendment that puts a broader interpretation in the actual text, then it is a point well taken. They may well prefer to pass the opposite law, based on their historical action.
Isn't it the same argument?
The thing that has changed over time is the nature, quantity and implications of the data held by third parties. Target now knows a daughter is pregnant before her father does, etc.
Against this level of knowledge stored by third parties, the third party doctrine eats the fourth amendment. Which means that "the proposition that the government has at least as much right to access your data for law enforcement purposes as AT&T does for billing purposes" has to be wrong. The principle is defective. Who you call is the business of the phone company because they have to route your calls; how does that make it the business of the government?