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Government Surveillance and the Third Amendment

The Third Amendment to the US Constitution gets less respect than the other amendments in the Bill of Rights. It has been used in Supreme Court cases fewer times than the rest, and on the surface, seems hopelessly antiquated. It says, "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." Now, that was a problem when we were a colony in the British Empire, but no one regards it as a possibility now. Or do they? California assemblyman Mike Gatto believes the amendment could be used to prohibit the National Security Agency (NSA) from spying on American citizens.

    Let's examine whether a case may be made. The National Security Agency is part of the Department of Defense and therefore of our nation's military. By law, the NSA director must be a commissioned military officer, and per its mission statement, the NSA gathers information for military purposes. That's strong evidence that NSA personnel would qualify as soldiers under the 3rd Amendment.

    And why did the framers prohibit the government lodging soldiers in private homes? Besides a general distaste for standing armies, quartering was costly for homeowners; it was also an annoyance that completely extinguished a family's sense of privacy and made them feel violated. Sound familiar?

It’s been said many times that the US Constitution guarantees no right to privacy, but a broad interpretation of the Third Amendment might actually include some expectation of privacy. Ars Technica lays out some of the pros and cons of this argument.

(Image credit: Flickr user Jane Dickson)


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