The Fourth Amendment in an Age of Surveillance

Privacy and Security

Article Snapshot

Author(s)

David C. Gray

Source

Cambridge University Press, 2017

Summary

New surveillance technologies and programs threaten to make government surveillance pervasive. The Fourth Amendment protects against unreasonable searches, but the Supreme Court has not consistently extended this protection to new surveillance methods.

Policy Relevance

Privacy is valuable to society as well as to individuals. Members of the public should be able to sue to prevent inappropriate surveillance.

Main Points

  • Oppressive surveillance is a feature of dystopias such as 1984 or East Germany during the Cold War: the twenty-first century has seen an explosion in government surveillance technologies and programs, ultimately leading to surveillance of everyone, everywhere.
     
  • Privacy is a complicated concept that resists reduction to a simple definition and varies depending on the context; however, a desire for privacy is universal among humans.
     
  • Privacy has valuable for individuals and for society as well, providing the conditions necessary for innovation and democracy; the absence of privacy is associated with psychological degradation and absolutism.
     
  • New technologies enable pervasive surveillance.
     
    • When a cell phone is turned on, it contacts nearby cell towers, and cell phone providers keep a record of this cell site location information.
       
    • Radio Frequency Identification tags on items such as passports and credit cards can be used to track anyone carrying these items.
       
    • The National Security Agency uses "Big Data" techniques to analyze massive amounts of consumer information.
       
  • The Fourth Amendment offers little protection from new surveillance programs; the Supreme Court has ruled that the Fourth Amendment protects “reasonable expectations of privacy,” which does not include public information or information shared with third parties such as banks and telephone companies.
     
  • Some propose that Fourth Amendment protection should be triggered by any surveillance technique that acquires a large amount of information, but this might hinder the police in conducting witness interviews, public record searches, and using undercover operations.
     
  • The term "search" should be defined broadly, consistent with everyday usage of the term; a "search" includes examining, seeking, or trying to find a person, exploring a house, looking through papers, or examining personal property.
     
    • Use of technologies such as GPS trackers, cell site simulators, and drones are “searches.”
       
    • Police should be required to obtain court orders to use these technologies for surveillance, as for wiretaps.
       
  • Requiring warrants or court orders for the police to use Big Data would be impracticable; however, access to the data should be controlled, and Big Data programs should be audited to protect against abuse.
     
  • The courts allow the police to stop and frisk anyone with inappropriate attire or making furtive movements; the courts should recognize that any citizen should have standing to challenge excessive stop and frisk programs, because of the collective value of privacy.
     

 

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