The Common Law #11

The Common Law #11
(The following column originally ran in a October, 2009 edition of the Moody County Enterprise.)

The Common Law:
Home Rights

By N. Bob Pesall 
Attorney At Law 
Flandreau, SD 

The sanctity of your home, your privacy, and your right to be left alone are probably the most strongly protected rights in our state and federal constitutions. In order to protect our democratic process, the drafters knew we'd have to be able to protect our individual privacy. To ensure this, they expressly enumerated our rights to control who gets to know where we live, how we live, and what we think.

For example, under our constitutions, our governments cannot search our persons, houses, papers or effects without a warrant. Our governments cannot make us house soldiers in our homes in time of peace without our consent, nor in time of war unless unless we specifically pass a law regulating the practice first. We even have the individual right to protect our selves and our homes from unlawful intrusions, by force if need be. In short, if we want to keep the rest of the world from knowing what we're “up to” we have every right to do that.

Back in the colonial days, maintaining the privacy of our homes was difficult. Most of our founding fathers were considered subversive by the Crown. The government often wanted to know who might cause trouble, and what they were “up to.” Under the technological limitations of the day, however, if the government wanted to know what you were “up to” they had to search your home, read your mail, or directly question you. Failing this, if you were suspected of being “up to something,” the government would quarter soldiers in your house to keep an eye on you, rather like like an 18th century security camera. 

Since then, technology advanced. We developed ways to record video and sound. By the middle of the 20th Century we could track and record lots of peoples' activity with very little man-power. We knew there would be risks. By 1949 George Orwell was already warning us of a possible dystopian future of government surveillance cameras and Big Brother monitoring our every move. We understood then that our great technology came with great responsibility. We would have to be ever more careful if we were to preserve our privacy and the sanctity of our homes.

And then, suddenly, we stopped caring. We got camera-phones. We got the Internet. And somehow, we got utterly starved for attention. We turned into Big Brother ourselves, filming all of the details of our lives and posting them for the world to see, all in the hopes that someone, somewhere, might possibly be interested.

I logged on to today. For those who don't spend a great deal of time in front of a computer, facebook is a web site on which users post stories, pictures, and information about themselves. This information can be shared with the entire world, or with a select group of friends. Our technology makes it easy to take pictures with your mobile phone, instantly send them to facebook, and get feedback on them from your friends, all while driving down the interstate.

However, as today's visit to facebook demonstrates, we are using that technology to tell the world every detail of our lives “no matter how trivial, mundane, or embarrassing.” Today my friend Tucker is “suddenly overwhelmed by the desire to play Tetris.” My friend Sonya “thinks Thursday is now her favorite day of the week.” And my friend Sandy is “ready to become un-pregnant.” Everyone has pictures posted. Vacations, children, broken toilet-seats, lunch menus, the dented fender on the car, a racy bikini shot, and even notes about a trip to the doctor's office are all recorded and published in careful detail. What exactly I am supposed to do with this information, or why I should care, has never been made clear to me.

But it is easy to misuse that information. After all, its not just me that can see it. Any “friend” can copy your pictures and pass them along to others at the speed of light. They can send them to people you don't know, people you don't like, marketing firms, law enforcement, or even the British Monarch. (You remember the British right? The ones from whom we were trying protect our privacy in the first place? Queen Elizabeth II has three different facebook pages dedicated to her.) In short, if we're not careful, anybody who wants to can learn about our politics, job, children, spouse, eating habits and medical conditions, with the click of a mouse. Worse, it's not just personal or mundane stuff we're posting. On more than a dozen occasions I've seen people I know posting pictures of themselves doing something illegal.

I cannot predict where this disregard for our long and honored rights will take us. Perhaps the new openness will make us more understanding of ourselves as human beings. Perhaps we will wake up one day to find ourselves in some Orwellian police state of our own making. Against this backdrop, I offer one piece of advice, and one prediction. My advice, dear reader, is to remember that not every mundane detail of your life is suitable for publication. The founders of our state and our nation understood that, for the good of our democratic system, our personal affairs and our homes can and should be kept private. Most of what we do is nobody's business but our own. My prediction is this: if we fail to keep our personal affairs personal, if we fail to make use of the rights we have, we need not fear Big Brother forcing his way into our homes. He'll already be there.

The foregoing column is written for informational purposes only, and does not constitute legal advice. For specific texts to the rights set out above, see U.S. Const. Amend. 3 and 4, and S.D. Const. Art. 6 Sec. 1, 11 and 16. N. Bob Pesall can be reached at P.O. Box 23, Flandreau, SD 57028, by telephone at (605) 573-0274, or on the web at