At 11:23 PM 1/12/2004, Tim May wrote:
During the Carnivore debate, I argued that mandatory placement of computer agents in systems was equivalent to quartering troops:
< http://www.mail-archive.com/[EMAIL PROTECTED]/msg03198.html>
"The Third Amendment, about quartering troops, is seldom-applied.
"But if I own a computer and I rent out accounts to others and the FBI comes to me and says "We are putting a Carnivore computer in your place," how else can this be interpreted _except_ as a violation of the Third?"
This was from July, 2000. I believe it also came up in earlier discussions, including in a panel I was on with Michael Froomkin at a CFP in 1995.
I could assume this also applies to the the TCPS (if it is ever required) and FCC's new mandate that DTV video devices sold in the U.S. after December 31, 2004 include a 'cop' inside to enforce compliance with the broadcast flag.
In its purest form, I think not.
If Alice is told that she must place some device in something she owns, which was the example with Carnivore, then the Third applies (she has been told to "quarter troops," abstractly, in her home).
If, however, Bob is told that in order to build television sets or VCRs he must include various noise suppression devices, as he must, or closed-captioning features, as he must, or the V-chip (as I believe he must, though I never hear of it being talked about, as we all figured would be the case), or the Macrovision devices (as may be the case), then this is a matter of regulation of those devices. Whether Alice then _chooses_ to buy such devices with "troops already living in them," abstractly speaking, is her choice.
Now the manufacturer may have a claim, but government regulation of manufacturers has been going on for a very long time, and unless a manufacturer can claim that the devices must be in his own home or operated in his premises, he cannot make a very strong case that _he_ is the one being affected by the quartering.
The pure form of the Third (in this abstract sense) is when government knocks on one's door and says "Here is something you must put inside your house."
By the way, there have been a bunch of cases where residents of a neighborhood were ordered to leave so that SWAT teams could be in their houses to monitor a nearby house where a hostage situation had developed. (It is possible that in each house they occupied they received uncoerced permission to occupy the houses, but I don't think this was always the case; however, I can't cite a concrete case of this. Maybe Lexis has one.)
If this takeover of houses to launch a raid is not a "black letter law" case of the government quartering troops in residences, nothing is. Exigent circumstance, perhaps, but so was King George's need to quarter his troops.
--Tim May
""Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined." --Patrick Henry
