Quartering Spyware Troops in a Digital Age: Why Your Home Should Be Your Castle

From Glenn Reynolds, at USA Today, "Quartering spyware troops in the digital age":

In 1893, historian Frederick Jackson Turner published a famous paper on the closing of the American frontier. The last unsettled areas, he said, were being populated, and that meant the end of an era.

I think that something a bit like that is happening in my field of constitutional law. The last part of the Bill of Rights left almost untouched — the Third Amendment — is now becoming the subject of substantial academic commentary, with a symposium on the amendment, which I attended, this past weekend held by the Tennessee Law Review.

The Tennessee Law Review published the very first law review article on the Third Amendment back in 1949. But there weren't very many to follow: a handful, over many decades. Maybe that's because the Third Amendment just plain works. It provides: "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."

That doesn't happen much — The Onion ran a parody piece some years ago entitled "Third Amendment Rights Group Celebrates Another Successful Year" — and so it may just be that the Third Amendment is the only part of the Bill of Rights that really works. Except that it may not be working the way that we think.

The only Supreme Court case in which the Third Amendment did any heavy lifting is Griswold v. Connecticut, a case that's not about troop-quartering, but about birth control. The Supreme Court held that the Third Amendment's "penumbra" (a legal term that predates the Griswold case) extended to protecting the privacy of the home from government intrusions. "Would we," asked the court, "allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" The very idea, said the court, was "repulsive."

Likewise, the U.S. Court of Appeals for the Second Circuit held in Engblom v. Carey that the Third Amendment protects a "fundamental right to privacy" in the home. Since then, courts haven't done much to flesh these holdings out, but I wonder if they should. In the 18th century, when the Third Amendment was drafted, "troop quartering" meant literally having troops move into your house to live at your expense and sleep in your beds. It destroyed any semblance of domestic privacy, opening up conversations, affection, even spats to the observation and participation of outsiders. It converted a home into an arena.

Today we don't have that, but we have numerous intrusions that didn't exist in James Madison's day: Government spying on phones, computers, and video — is spyware on your computer like having a tiny soldier quartered on your hard drive? — intrusive regulations on child-rearing and education, the threat of dangerous "no-knock" raids by soldierly SWAT teams that break down doors first and ask questions later.

The Third Amendment hasn't been invoked in these cases — well, actually, it has, in the case of a SWAT team in Henderson, Nev., that took over a family home so that it could position itself against a neighbor's house — but maybe it should be. At least, maybe we should go farther in recognizing a fundamental right of privacy in people's homes...

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