Could the Third Amendment be used to fight the surveillance state?

The Third Amendment to the United States Constitution is just 32 words: "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."

Amongst very nerdy constitutional law circles, the Third Amendment is practically a joke. It’s never been the primary basis of a Supreme Court decision, and it only turns up rarely in legal cases. The reality is that the federal government isn’t going to be sending American soldiers to individual homes anytime soon. Even The Onion tackled the issue in 2007: "Third Amendment Rights Group Celebrates Another Successful Year."

But in a recent op-ed in the Los Angeles Times, one California state lawmaker, Assemblyman Mike Gatto, has proposed a novel legal theory that could allow this amendment to fuel a major legal challenge to the American surveillance state:

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?

As Gatto acknowledges, the Third Amendment has hardly been litigated in the history of the republic. And he figures that civil liberties groups like the Electronic Frontier Foundation and the American Civil Liberties Union have yet to strike a crippling blow to the government in their myriad of legal challenges under the First and Fourth Amendments. Plus, he realizes that a plaintiff and his or her creative lawyers would need to get around the thorny issue of standing, which has been a particular tough hurdle to overcome.

"I think they need to start taking other tools from the toolbox," Gatto told Ars. "It's definitely a long shot argument and is definitely one that has certain deficiencies, but what got me going on that line of reasoning is that when it has been cited in privacy cases it's been big landmark privacy cases—you get a sense that our Founding Fathers valued privacy. There’s a clear message that privacy is something."

As Gatto pointed out, one of the most recent citations for the Third Amendment in a Supreme Court decision (Griswold v. Connecticut) is from a big case. The Third Amendment is mentioned in one single sentence in this 1965 decision concerning the constitutionality of a Connecticut state law banning contraception, which the court overturned.

"The Third Amendment, in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner, is another facet of that privacy," the Supreme Court wrote in its 7-2 majority opinion.

Three's a charm

Gatto isn’t the first to come up with this bold idea.

Steven Friedland, a law professor at Elon University, wrote up a similar argument to Gatto's in February 2014. He was joined by Glenn Reynolds, a University of Tennessee law professor, in yet another pro-Third Amendment argument from March 2015.

As Friedland concluded:

The Third Amendment no longer will be the forgotten amendment if it is considered to interlock with the Fourth Amendment to provide a check on some domestic mass surveillance intruding on civil life, particularly within the home, business or curtilage of each. In the digital era, the dual purposes of the Amendment should be understood to potentially limit the reach of cyber soldiers and protect the enjoyment of a private tenancy without governmental incursion.

Ars ran this burgeoning theory by a few legal experts. Gatto himself acknowledges the novelty of it, so it's no surprise all of the experts we consulted expressed a healthy dose of skepticism.

"The Third Amendment is always a ‘fun’ avenue for thought experiments," said Paul Ohm, a law professor at Georgetown University. "But because it hasn’t been litigated in a long time, there really aren’t any experts per se about it."

Neil Richards, a law professor at Washington University in St. Louis, told Ars that while he appreciated Gatto’s creativity, he doesn’t think this will be a particularly fruitful avenue.

"But the Third Amendment doesn't have a rich legal history beyond the quartering of redcoats, and the Supreme Court has never applied it directly," he e-mailed Ars. "In addition, the constitutional right to privacy in Griswold is anathema to many judicial conservatives, even those who might have been sympathetic to legislative efforts to curtail NSA spying.

"A much better vehicle to oppose government spying is the First Amendment," he continued. "My recent book Intellectual Privacy argues that surveillance chills our abilities to think, read, and communicate freely, and there is a growing body of empirical evidence supporting this long-held intuition. We should protect our intellectual privacy, but we should do it using the First Amendment. We should also protect it through legislation like the USA Freedom Act, strong cryptography, and corporate actions like Microsoft's brave decision to fight US government attempts to seize user emails that it holds in trust in its global cloud."

Daniel Solove, one of the country’s foremost experts on privacy law and a professor at George Washington University, told Ars that while Griswold does mention the Third Amendment, it’s important to remember that it only relies on it in a minor way.

"[That case is] about the constitutional right to privacy, formed by many amendments, and it has traditionally applied to cases involving bodily decisions (abortion, contraception)," he e-mailed Ars. "So I don’t think it would do much against government surveillance. A creative and progressive Court might try to develop some theories here, but that’s not this current [Supreme Court]."

For now, legal experts appear a bit split on the idea, and we'll only truly ever know the merits of the Third Amendment in regards to privacy if a case makes it way to the Supreme Court. However, it's clear all these minds seem to agree on one thing—it's time for some new thinking and challenges regarding how privacy is being treated today.