Sep 142010
 September 14, 2010  Court, Featured News, Misc, Surveillance

Julian Sanchez provides more food for thought:

….   Several fascinating recent papers, however, have instead argued that the root of the trouble with current Fourth Amendment doctrine is the very idea that the prohibition on “unreasonable searches” must be viewed primarily through the lens of privacy. If we consider public surveillance camera networks, or some recent cases involving “dragnet” location tracking by law enforcement, I think we find that whatever intuitive unease we feel about the methods employed has less to do with a sense that the individual “right to privacy” of any particular person has been violated than with concerns about the government monitoring the citizenry as a whole in these ways. In his new paper “Fourth Amendment Pragmatism,” Daniel Solove therefore argues for a radical remedy: We should dispense entirely with an analysis that treats the violation of a “reasonable expectation of privacy”  as the sine qua non of a Fourth Amendment “search,” and instead “regulate whenever government information gathering creates problems of reasonable significance.”

Solove’s critique of the current approach is quite cogent: The “action” in Fourth Amendment jurisprudence, so to speak, overwhelmingly surrounds the threshold question of whether a particular investigative technique counts as a Fourth Amendment “search,” and though the standard is supposed to be that “reasonable expectation of privacy,” the Court’s rulings on what falls within that ambit don’t match up terribly well with people’s actual expectations as revealed by the  limited empirical data we have. We end up with a largely binary system of regulation where (with a few exceptions) techniques classified as “searches” require the same full-blown probable cause warrant necessary to search a home—though the primary remedy for violations of the warrant requirement is the “exclusionary rule” prohibiting the introduction of improperly obtained evidence at criminal trial, which is not always the primary concern. Everything that doesn’t count as a “search,” on the other hand, is left wholly unregulated, at least by the federal Constitution—leaving our privacy in those contexts at the tender mercies of the Congress and state courts. As Solove argues, it would make more sense for the scope of the Fourth Amendment to be interpreted substantially more broadly, with the understanding that not every search rises to the level of requiring a full probable cause warrant to pass muster as “reasonable.”

Yet Solove’s proposed standard—”regulate whenever government information gathering creates problems of reasonable significance”—does not seem like much of a standard at all, and indeed, does not seem especially “pragmatic,” in at least a couple of ways. …

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