Well aspenmonster's doing a poor job at it then. rayiner could be exactly right in his description of the specific fear that the Framers had which lead to them including that general protection into the Bill of Rights. In fact I would be surprised if rayiner wasn't correct on that there was a specific instance.
And rayiner never tried to claim the 4th Amendment says something different other than its actual text either. He simply explained why the actual text of the 4th Amendment was thought to be required, which can be helpful in court deliberations when trying to apply a vague law to a given case.
You can use "why" to question the context in which the amendment was created, and I even agree with you about that context, but "why" is a broader term, which can be thought, in these circumstances, to include also the intent of the amendment -- why was the amendment created if not to prohibit precisely that which it prohibits? In short, this is a miscommunication based on a word's definition.
Well, I'm clearly not doing so poorly that no one understands what I'm getting at. I was calling out a tendency towards detracting pedantry that seems quite common amongst the "Karma Superstars" of Hacker News. Rayiner's interjection that the "actual" incitement to the penning of the fourth amendment was, specifically, the intrusion of the British into citizens' homes may be correct. If I understand correctly, he's (she's?) a lawyer by profession, so there's a good chance it is.
It's just irrelevant. It's technically true and completely beside the point that pvnick was making about the spirit of the law, something that rayiner seems to have a difficult grasp on given his (her?) incessant need to describe in condescending tone and dismissive language that "actually," "technically," whatever the person he's (she's?) responding to has said is, under statute or precedent or treaty or scholarly interpretation, incorrect. It's a frustrating way of avoiding responding to a person's clear and obvious point by instead nitpicking about this statute, or that precedent, or treaty X, while giving off the false impression that something relevant to the discussion at hand has been said. And the Hacker News community seems to gobble it up.
Rayiner doesn't need to spell out a claim in plain words and sentences for the tone of his message to convey one, though his choice of sentences often does. Hell, he's given a perfect example of what I'm talking about in a reply posted as I write this that I can only assume was mistakenly attached to my post rather than pvnick's. Everything he says about what the founders intended in the 1700s, and what the history of the law is, and why the original drafter specifically decided to include it in the Bill of Rights, may be 100 percent accurate. It just ignores the fact that laws are given meaning and power by people, and their meaning and power as seen by those people changes over time. To suggest that the fourth amendment "isn't about information" and that "it's protections don't attach to information and follow it around" is something that very clearly undermines what nearly every person in this democratic republic holds to be the purpose and power of the fourth amendment. My right to be secure in my effects doesn't end just because I place them on a server in a datacenter rather than a computer in my home, and it is absolutely disingenuous to suggest that the spirit of the law has not been violated by anyone in the legal profession that holds to that interpretation. It doesn't matter if a legal scholar adheres to a 20th century interpretation of a 19th century law that is absolutely bogus in the 21st century, because the point that myself or pvnick or any other user makes about the spirit of a law has nothing to do with the scholarly legal interpretation; it has to do with the actual point: that the government never has free reign over my effects, regardless of whether I keep them locked up, in a safe, in a home that I own, on land that I own, and never ever ever do anything with them; or whether I place them, unencrypted, on a server that I do not own, in a data center that I do not own. My emails do not become "unprotected communication" after 180 days. They do not become "unprotected communication" after 365 days. They do not become "unprotected communication" after five years. They _never_ become "unprotected communication" based on _any_ arbitrary time limit. No matter what any statute or precedent or treaty says to the contrary.
I'm not pedantic because I think what is technically legal is more important than "what nearly every person in this democratic republic holds" to be true. I'm pedantic precisely because there is no such democratic consensus. The people don't broadly believe what the NSA is doing is wrong. Your friends might think the way you do, but the vast majority of my friends are okay with what the government is doing, my parents are okay with it, my wife is okay with it. They are wary of the information being abused, but they stop short of thinking that the government cannot be trusted to have that information at all in its prosecution of terrorism. I'd have to go out of my way to personally find someone who strenuously objects to the NSA program, as it exists today.
So when you can't resort to an appeal to the democratic consensus, you have to resort to pedantic legal arguments: the fact that the people don't care doesn't change what is and is not unconstitutional. And that brings you to an analysis of: what is the spirit of the 4th amendment, both in light of the text and in light of history? Was it intended to protect your house and home, or was it intended to be a broad protection of the amorphous concept of "privacy"?
The third way is by far the worse, but it's the one you're stuck with if you reject pedantic legalism. If the majority doesn't agree with your viewpoint, and you can't find clear support for your viewpoint in the text or history of the laws, you're stuck arguing that your viewpoint should prevail based on an appeal to transcendent principles. And that puts you in the same boat as people who think the U.S. was founded as a "Christian nation" and that the Bible should inform our laws. That is to say, it doesn't necessarily mean you're wrong, but rather that you're fighting from weak ground. While viewpoints based on an appeal to transcendent principles do sometimes prevail, it's almost always based on a hard-fought campaign to first establish a democratic consensus.
There is a democratic consensus that what the NSA is doing is wrong. The world on the whole certainly believes what the NSA is doing is unacceptable. It clearly violates article 12 of the UDHR, though of course we both know that not a single country on this planet really takes that document seriously. Even a majority of polled citizens of the USA believe that the unveiled programs are overreaching. Perhaps that's not broad enough for your taste, though if that is the case then I don't see how there's a broad belief that what the NSA is doing is right, either. Perhaps you can't stand the way pollsters have a habit of wording their questions with politically charged language; no disagreement there.
But even without democratic consensus there isn't a genuine distinction between the "second" and "third" ways you mention. Pedantic legal arguments are themselves built upon philosophical (transcendental, if you will) understandings of right and wrong; they cannot be detached from one another. That in courts we pretend otherwise is irrelevant. We make that distinction without a difference at our own peril. The spirit of the fourth amendment cannot be found strictly "in the light of the text and in light of the history." The raw text and history describe how the laws came into play, not why they did. To say that the fourth amendment was created because the founders didn't want anyone to have the ability to abuse Writs of Assistance to rummage through your house and home, completely ignores the underlying philosophical objection to such actions. I believe it's clear from the writings of the founders that, in penning the constitution and its initial batch of amendments, they weren't merely objecting to specific instances of wrong doing nor the technical implementation of such malice; they were, fundamentally, objecting to the very philosophy that suggested any person could possibly have a legitimate authority to rummage through the entirety of someone else's life at will and without any constraint or oversight. It wouldn't matter if they were rummaging through your house and home or your PO box or your safe deposit box or your Dropbox account. It is the philosophy that matters, and that the fourth amendment says nothing about computers or correspondence doesn't negate the philosophy that the founders were acting upon during their time.
In any case, I don't personally think that how the founders in the 1700s felt is somehow automatically relevant to the year 2013. We are living here now, not them. But for sake of argument, I suspect if I approached them with a system that permitted the "scanning" of all letters sent throughout the colonies without "actually reading" them until a "trigger" word was found; and that I pinky sweared that only trigger words relevant to national security would ever be utilized by this system; and that a secret court with sealed proceedings and opinions would look things over every couple months; they'd laugh in my face until they noticed I was dead serious, and then proceed to berate me for even suggesting something so tyrannical. To suggest that the founding fathers were appalled by the ability of a British official to abuse a Writ of Assistance to dig through their effects in their homes, but somehow wouldn't be appalled if the official decided to instead wait for the founders to place their belongings in a safe deposit box at a bank before seizing them, strains credulity.
Suffice it to say, I don't believe that either of the major legal systems on this planet today are really just. Common law, and the jurisprudence it confers, has a nasty habit of trying to apply the same rules to situations that are either entirely different or else similar in the most superficial of ways. In a zeal to ensure everyone receives equal treatment under the law, we've mistakenly decided that we will all equally suffer under precedent that is quite possibly not at all applicable outside of its initial case, rather than applying the spirit of the law to each and every situation as it arises. The capacity for a single shitty ruling to establish a precedent that must then migrate all the way to the supreme court to be overturned, is a colossal failure of the common law judicial system in my eyes. Civil law doesn't fair much better. It too wants to ignore the philosophical motivations of the statutes it upholds and is just as guilty of the same grievances. Though I do suspect that common law would fair better under reforms than civil law.
