Thank you for the great reply; nice to see a thought process and not just snarky one-liners!
I still think Constitutional arguments are more likely to get traction given their marketing potential: people get worked up when you tell them the Constitution is being trampled. These arguments may only be indirect ("chipping away"), but sometimes all you need is a toehold.
> people get worked up when you tell them the Constitution is being trampled
And some people get worked up when you lie right to their face and claim that something is Unconstitutional when the Constitution doesn't touch it at all. :)
It is debatable wether "papers," properly read in the context of "persons" and "houses," is referring to communications rather than information storage. In any case, you can't ignore two other things: 1) the word "their"; and 3) the historically broad powers of subpoenas in the common law judicial system.
If you send a letter to someone, is it your paper, or is it their paper? This is really crucial, because the types of communication at issue aren't like postal letter that might have qualified as a "paper" under the 4th. Postal letters are sent sealed to the recipient. They are not copied or stored or archived by any intermediary, or even seen by any intermediary. But all of these things happen to your Facebook posts and gchats and gmails. And some of the things that are at issue, like Verizon's call detail records, are never even in your possession at any point nor are they generated by you! They are some third party's observations of your activities. How do you say that is your "paper" rather than Verizon's?
Also, historically, the protections that exist with respect to third parties' information about you are dramatically less than the protections that exist with regards to information in your possession. The government needs a warrant with probable cause to rifle through your office looking for tax documents, but can get your accountant to give up any information he has about your finances with a simple subpoena. This was as true in the founder's time as it is today.
I can get on board with the idea that "papers" encompasses digital documents in your personal possession. Maybe even direct digital transfers between computers. But documents stored and archived by third parties that look through those documents to target advertising to you? I think you've left the orbit of the 4th amendment at that point.
Also, even "papers and effects" doesn't give you enough mileage to attack other sorts of surveillance: drone cameras recording your comings and goings in public, aggregation and indexing of your public forum posts, etc. That's what I really mean when I say the 4th amendment doesn't say anything about "monitoring."
I still think Constitutional arguments are more likely to get traction given their marketing potential: people get worked up when you tell them the Constitution is being trampled. These arguments may only be indirect ("chipping away"), but sometimes all you need is a toehold.