Connecting 1761 with Today (well, with Wednesday)

So here’s my report on Wednesday’s panel discussion at the Bostonian Society about America’s long debate over lawful search and seizure. We started with a gossipy introduction to James Otis, Jr.’s argument against writs of assistance in 1761 (that would be me), examined the Fourth Amendment to the U.S. Constitution, and ended with electronic surveillance by the same U.S. government today.

The moderator was Vermont lawyer Frederick S. Lane, author of the new book American Privacy. I hadn’t met him before, but by the end of the event it was clear that we were connected in some curious ways:

• Fred and I are both descended from John and Elizabeth (Tilley) Howland of the Plymouth Colony.
• When my mom did some historic knitting for Plimoth Plantation, Fred’s mom was her contact as volunteer coordinator.
• The first citation in Fred’s book is a newspaper article co-written by my lab partner in high-school chemistry.

The second panelist was Prof. Joe McEttrick of Suffolk Law School, with whom I share a more reasonable past. A few years back, he organized a reenactment of the trial of the soldiers after the Boston Massacre. By email I contributed a bit to his script (about Pvt. James and Elizabeth Hartigan) and helped draft the printed program. Those were among the first things I ever wrote about Revolutionary Boston for public consumption.

I haven’t spotted any personal link to the third panelist, Kurt Opsahl of the Electronic Freedom Foundation. But his description of the last decade’s fight over the limits of government surveillance showed some parallels with Boston’s legal dispute over writs of assistance.

That lawsuit arose in 1761 because, with the death of King George II the previous October, the Customs officials’ old writs were about to expire. That offered a once-in-a-king’s-lifetime chance for local merchants to argue that such writs had no basis in Massachusetts law.

Similarly, the Bush-Cheney administration’s electronic surveillance program known as “Stellar Wind” had to be renewed every 45 days. At one of those junctures in 2004, there was a showdown inside the Justice Department. Deputy Attorney General James B. Comey and White House Counsel Alberto Gonzales squared off in Attorney General John Ashcroft’s hospital room. Many Justice Department officials threatened to resign. As a result, the program was modified, though only slightly, and in ways we don’t really know.

TOMORROW: Another common element of the privacy fights in the 1760s and those of today: government leaks.