In the midst of chilling revelations of widespread government surveillance of phone records and internet activity of millions of Americans, there has been justifiable outrage that such actions violate our Fourth Amendment right against unreasonable search and seizure, as well as our First Amendment right to free speech, free association and privacy. Victims, who appear to include every person with a Verizon account, as well as other telephone service providers, demand accountability and action to enforce these precious rights. Their demands will go unmet. For lost in the debate is the equally troubling fact that over the last decade Americans have also lost their 7th Amendment right to trial by jury.  

A First or Fourth Amendment Right without any remedy is no right at all. Yet that is exactly where we stand with this latest intrusion into our private lives. For one, Congress has conferred broad immunity on phone companies for carrying out the bidding of an overreaching executive branch. Second, even if a private cause of action existed, the Supreme Court has institutionalized the ability of telephone carriers, like Verizon, to place arbitration clauses in their consumer contracts. These arbitration provisions prohibit users from pursuing any cause of action against Verizon in any forum other than a secret arbitration. Moreover, such actions may only be brought on an individual, rather than a class basis. Similar clauses exist in every terms of service for every company that has been mentioned in news stories about the government’s broad surveillance program. In short, there is no economically viable way for American citizens to use the third branch of government, the judiciary, to hold the executive branch accountable for its actions. The end result is we have no checks and balances, because we have no means to hold anyone accountable.

Your Seventh Amendment right to trial by jury is not a quaint relic of the American Revolution. It is a singularly important piece to insure you have a mechanism available to enforce accountability for any violation of your rights. The Robert’s Court took that away by permitting corporations to use forced arbitration clauses in consumer contracts.

If you want privacy, if you want protection from unreasonable searches and seizures, if you want your core rights as an American protected, you want a right to trial by jury guaranteed by the 7th Amendment. Arbitration takes that away and it must end.