Mind rape [was: Re: INTERCEPT THIS]

Aimee Farr aimee.farr at pobox.com
Fri Aug 10 08:07:17 PDT 2001


Shostack:

> Jeffrey Rosen writes about this in "The Unwanted Gaze."  He recounts
> the story of John Wilkes, an MP in the 1760s whose diaries were
> seized, and how the law evolved from allowing only the seizure of
> contraband, and not papers for use as "mere evidence."  I found it an
> entertaining read for $13, and there was useful historical context and
> interesting tidbits.
>
> The trends Tim describes would have been very familiar to the
> founders, and have been going on for longer than 20 or 40 years.
>
> Adam

That's why I cited to Boyd v. United States, 116 U.S. 616 (1886):

...The principal question, however, remains to be considered. Is a search
and seizure or, what is equivalent thereto, a compulsory production of a
man's private papers, to be used in evidence against him in a proceeding to
forfeit his property for alleged fraud against the revenue laws--is such a
proceeding for such a purpose an "unreasonable search and seizure" within
the meaning of the Fourth Amendment of the Constitution?.... As before
stated, the Act of 1863 was the first Act in this country, and we might say
either in this country or in England, so far as we have been able to
ascertain, which authorized the search and seizure of a man's private papers
or the compulsory production of them, for the purpose of using them in
evidence against him in a criminal case, or in a proceeding to enforce the
forfeiture of his property. Even the Act under which the obnoxious writs of
assistance were issued did not go as far as this, but only authorized the
examination of ships and vessels and persons found therein, for the purpose
of finding goods prohibited to be imported or exported, or on which the
duties were not paid; and to enter into and search any suspected vaults,
cellars or warehouses for such goods. The search for and seizure of stolen
or forfeited goods or goods liable to duties and concealed to avoid the
payment thereof are totally different things from a search for and seizure
of a man's private books and papers for the purpose of obtaining information
therein contained, or of using them as evidence against him. The two things
differ toto coelo.

(Boyd was 'done away with' in Adams v. New York.)

~Aimee





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