Peter Swire writes, in part:
The proposal here is that the answer lies in addressing what the Supreme Court in Delaware v. Prouse called “standardless and unconstrained discretion,” and what Justice Sotomayor called “unfettered discretion” in her concurrence in Jones. Supreme Court precedent contains powerful methods for limiting this sort of discretion, primarily in the second step of Fourth Amendment analysis. The first step, and the focus of the dueling opinions in Jones, concerns the definition of what constitutes a “search or seizure.” The second step, once a “search or seizure” exists, is to define its reasonableness. The thesis here is that the reasonableness doctrine offers the best opportunity to respond to the Justices’ concern about unconstrained discretion in high-tech searches. Longstanding precedents under this doctrine require “minimization” of intrusive surveillance and procedural checks against standardless or discriminatory surveillance.
Read more of his article in the Stanford Law Review