#11 What Would James Otis Jr. Do?

Rule 41 of the Federal Rules of Criminal Procedure is Amended

We have been taught in school that, “no taxation without representation” were the Colonists first cry for liberty. However, the first screams for liberty began when James Otis Jr. took action against illegal search and seizure.

John Adams sought to make sure that invasive searches and seizures were never carried out again when drafting the Fourth Amendment. In it, he wrote “a warrant must specify the “persons or objects of search, arrest, or seizure.”

An amendment to Rule 41 of the Federal Rules of Criminal Procedure took effect on December 1st. It now reads:  “A magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if: (A) the district where the media or information is located has been concealed through technological means; or (B) in an investigation of a violation of 18 U.S.C. § 1030, the media are protected computers that have been damaged without authorization and are located in five or more districts.”

The amendment is a game changer for the FBI’s regulation over search and seizure. This change will allow federal agencies to obtain a warrant for “remote-access” searches and seizures of digital materials. I would argue that it is a returned to the days when America was ruled by the King of England and the British Parliament.

To give some historical context, we need to go back in history to the the 1760s. British authorities were allowed to carry out searches of anyone at anytime, regardless of whether or not they were suspected of a crime.

The reason John Adams was so vehemently opposed to unwarranted searches and seizures was because he watched as James Otis Jr, a Boston attorney, challenge the British hierarchy on the legality of the searches and seizures afforded to the British officials and custom agents under the writ of assistance issued

A writ of assistance is a written order (a writ) issued by a court instructing a law enforcement official, such as a sheriff or a tax collector, to perform a certain task.

In the England, writs of assistance were first authorized by an act of the English Parliament in 1660 to help customs officials search for smuggled goods. These writs called upon sheriffs, other officials, and loyal subjects to “assist” the customs official in carrying out his duties.

The writs of assistance for the customs officials served as general search warrants. The writs were permanent and even transferable; the holder of a writ could assign it to another official. Any place could be searched at the whim of the holder, and searchers were not responsible for any damage they caused. In practice, this put anyone who had such a writ above the laws.

These writs of assistance were being used in an effort to curtail the “smuggling” by the merchants of Boston. The authority of the writ was used in an attempt to capture the taxes and gain control on the illegal goods being “smuggled” into Boston.

Colonists protested that the writs violated their rights as British subjects. The writs were challenged by a group of 63 Boston merchants represented by Attorney James Otis, Jr. Otis technically lost his challenge to the authority of the King and Parliament writs but made a strong impression on both Samuel Adams and John Adams as the watched the trials with great interest.

In a pamphlet published in 1765, Otis expanded his argument that the general writs violated the British unwritten constitution. The constitution opposed any law in violation of the Magna Carta or “natural law” was void.

Natural Law protects natural rights. *Natural rights are addressed in our Declaration of independence. They are called inalienable rights “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

 Otis’ next challenge came in September of 1766 when customs officials in Boston, with the help of a deputy sheriff, searched merchant Daniel Malcom‘s home. His home was also his place of business. They claimed the authority to do so by a writ of assistance issued to a British customs agent. The writ was issued based upon the information of a confidential informant.

Malcom allowed the agent and deputy sheriff to search, but denied them access to a locked cellar, arguing that they did not have the legal authority to break it open. Malcom threatened to use force to prevent them from opening the door. Malcom claimed that his threat was specific to his resisting an unlawful forced entry.

The officials left and returned with a specific search warrant, only to find that Malcom had locked his house. A crowd of Malcom supports had gathered around the house and were hostile to the customs officers when they returned.

The British officials described Malcom as acting in defiance of the law. His lawyer, James Otis Jr, argued that Malcom’s actions were lawful. Otis’ push against the validity of writs of assistance produced more challengers. In 1768, John Hancock, a wealthy Boston merchant, would resisted a search in a similar manner when customs officials attempted to search his ship Lydia.

Although no violence occurred during these defiant acts the British Governor of Massachusetts reports back to England created the impression that riots had taken place. These incidents furthered Boston’s reputation in Britain as a lawless town controlled by “mobs”.

This reputation would contribute to Parliament issuing a series of acts called the 1767 Townshend Acts. The Townshend Acts were met with further resistance in the colonies, prompting the occupation of Boston by British troops in 1768, which eventually resulted in the Boston Massacre of 1770.

Today law enforcement officials and proponents, of the amendment to Rule 41 of the Federal Rules of Criminal, claim that this is just a necessary alteration which fits the digital age. It is not. It is a concession of another one of our “natural rights”. For the American citizens it is a loss of privacy.

In the 1760’s the enforcement of the writs of assistance for the custom officials’ illegal searches and seizures became the catalyst that prompted our founding father quest for liberty and independence. Today it is just a footnote.


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