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| Burns, Cunningham & Mackey, P.C.

By now Edward Snowden is a household name. To some he is a hero. To others he is a villain. Snowden maintains he is neither, only that he is an American. Über-whistleblower Daniel Ellsberg thinks Snowden’s leak (that the United States intelligence community is engaging in wholesale monitoring of everyone’s communications, in case you were sleeping) is the most important one in American history – more important that Ellsberg’s own Pentagon Papers.

If Snowden’s tale follows the pattern of other recent whistleblowers, he’ll be charged by the Obama administration under the Espionage Act of 1917. The scandal has so shaken the halls of power that Congressman Pete King (R-NY), not content with a pound of flesh from Snowden, wants the journalist who broke the story, Glenn Greenwald, arrested as well. So much for freedom of the press.

Now Snowden maintains that he cannot get a fair trial in the United States. Given the media talking-points about him that may be true. But what is lost in the debate about the messenger is the message.

Scholars of the Fourth Amendment know that the provision had its roots in the English Crown’s treatment of another less-than-savory character who is somewhat lost to history, perhaps largely due to his infamous namesake.

John Wilkes, 18th-century journalist and member of Parliament, libertine and penman of pornographic poems, ugly and cross-eyed, and perhaps the man who mistreatment is most responsible for privacy right enjoyed by Americans for over two centuries. In the famous case of Wilkes v. Woods, Wilkes sued the over the issuance of a “general warrant” issued against him by the Crown. The general warrant, which lacked the exact type of particularity called for in the Fourth Amendment, was a political weapon for fishing expeditions on those who had angered the King. Chief Justice Pratt agreed with Wilkes and condemned general warrants “as totally subversive of the liberty [and] the person and property of every man in this kingdom.”

Dragnet cyber-snooping is new general warrant. The issues of who Edward Snowden is and what his motivates were in leaking are as irrelevant as the same issues concerning Wilkes in his day. The real question is whether Americans can see through the media hoopla and comprehend that one of the pillars of American civil rights is under attack. If they cannot then the story will ultimately not be about Snowden but how a complacent generation frittered away rights paid for by the blood of their ancestors.

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