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The Ideological Assault on the Fourth Amendment

UPDATE: In the comments Julain Sanchez elaborates on his position and notes: “I wouldn’t want people who just read the post to think I’m some kind of apologist for the surveillance state.” Please see below for his full thoughts.

No Associated Press content was harmed in the writing of this post

Last week the Third Circuit Court of Appeals ruled on the privacy of cell phone records. It seems at best a mixed bag; while the ACLU was largely happy with it, Electronic Frontier Foundation attorney Kevin Bankston noted the decision “made clear that under some circumstances the privacy of such data could be constitutionally protected, and that judges have the discretion to require a warrant to avoid potentially unconstitutional seizures of location data.” Qualifications like “under some circumstances,” “could be” and “have the discretion” highlight the conditional nature of the ruling. A sympathetic judge can allow these records to be exposed without a warrant, and that is hardly a victory for civil libertarians.

This is consistent with a mostly unbroken trend towards intrusive government and an increasingly claustrophobic sphere of privacy. Consider the wholesale collection of internet traffic in order to engage in warrantless wiretapping, heavy handed search procedures at borders and use of satellite imagery to keep tabs on people’s private spaces. (See the description of the Z Backscatter Van at the last link for another potentially troubling development.) Whether through old fashioned encroachment or new technology, the change is unmistakable.

On that first point, pushing back against an overbearing government is a perennial effort; the only thing new about it now is the degree to which the public acquiesces. The post-9/11 effort to keep citizens in a state of blind panic has allowed authorities to make much more ambitious claims, and fighting that - while a very tall order - basically boils down to persuading people that they have more to fear from their own secretive and power mad officials than from the monster under the bed.

On the second, the issues in the digital era were summed up nicely by federal magistrate James Orenstein. In an opinion preceding the 3rd Circuit ruling he wrote of “a growing recognition, at least in some courts, that technology has progressed to the point where a person who wishes to partake in the social, cultural, and political affairs of our society has no realistic choice but to expose to others, if not to the public as a whole, a broad range of conduct and communications that would previously have been deemed unquestionably private.”

Julian Sanchez argued Monday for a standard that would exclude virtually all such data from 4th Amendment protection. He focuses on the Amendment’s declaration of “the right of the people to be secure…against unreasonable searches and seizures” as a guarantee of security, not privacy. Any level of surveillance is fine as long as people are fully informed about it. If they know the exact degree, even if it is pervasive, it passes Constitutional muster. The 4th Amendment only provides protection against secretive activities, which would create at atmosphere of insecurity in the populace.

He also links to this study, a paper with a goal of “helping to lay the groundwork for an updated, more thorough empirical investigation into perceptions of privacy.” The authors do so by “focusing on lay perceptions of what constitutes privacy and thus violations of privacy.” The problem is that asking people theoretically what does and does not seem intrusive is much more sanitized than actually being in the moment of such a violation. What might seem fine in an academic setting might be completely objectionable in reality. Moreover, judges who spend their professional lives examining many (sometimes subtly) different examples of search and seizure may arrive at different opinions of what is reasonable. The additional experience and nuance ought to count for something.

The insidious part of such an investigation is that it supports the principle that unless citizens can demonstrate actual harm, government is free to do what it will. This is the polar opposite of the position that government needs to provide a substantiated, compelling reason to intrude in people’s lives. It is ultimately a question of what stance the state should have towards the individual. Given all the actual examples of a burgeoning surveillance state, a study like this can hardly be considered in a vacuum.

Sanchez’ noble-sounding attempt to “draw more nuanced distinctions between dimensions of privacy” to account for new technologies can only have one effect in practice: Continued erosion of citizens’ civil liberties. We should not, as he argues, “move beyond a view of the Fourth Amendment as strictly concerned with an individual privacy right.” An authority-friendly court system that rules, even unfavorably, on a precedent-based, holistic and intuitive understanding of the 4th Amendment is better than the alternative: An attempt to break it into many pieces, each with a different set of rules governing it. Because the inevitable next step from there is to set them on a shelf where they will exist, like targets in a carnival game, solely for the purpose of getting picked off.

Reader Comments (4)

I think you've quite inverted the meaning of my post; I was arguing that the Fourth Amendment should be interpreted *much more broadly* to cover many forms of surveillance that are not currently considered "searches." I certainly don't say (or believe) that any search people are informed about passes constitutional muster. Might I suggest you give it a second read? You may be confusing my summary of the current state of the law with my own argument.

September 16, 2010 | Unregistered CommenterJulian Sanchez

Thanks for the clarification, Julian. You appear to endorse Rubenfeld's approach and write:

Rather than asking whether an individual reasonable expectation of privacy has been violated, we ask whether people would remain secure in their liberties if a particular search method were pervasive. If it would not, we ask what restrictions—such as requiring a probable cause warrant or “specific and articulable facts”—would sufficiently narrow the method’s application so as to leave reasonable citizens secure.
Given your preceding comments on security meaning confidence in what the limits are, I took that to mean authorities would be free to, say, collect cell phone data from providers, even pervasively, as long as it was clear to everyone that it was happening. The only thing that might constrain the government in this scenario is if it was collecting the data furtively. If that's the case, and you take away the expectation of privacy as well, it looks like a pretty substantial weakening of the 4th.

You also wrote

as technology increasingly enables mass, population-level monitoring by government, often making use of information that is not absolutely secret and private (because, for instance, it has been turned over to an array of commercial entities, even if no one business has all the information) it may be necessary to move beyond a view of the Fourth Amendment as strictly concerned with an individual privacy right.
I took this to mean that electronic data like cell records are comparable to bank records, in that an individual who does business with both does not have an absolute expectation of privacy. Which therefore means, open season for the government. Since there is already a history of "cooperation" between intelligence agencies and telcoms (and Qwest can tell you just how voluntary such programs are) it seems like a foregone conclusion to go from there to justifying wholesale data dumps to federal officials.

(This also bumps up against the whole issue of government's increasing use of leaning on the private sector to go around legal requirements that would otherwise require a certain amount of review or transparency.)

I made a number of assumptions obviously, and some of them missed what you were getting at. With actual examples around to apply the theories to that can be cleared up (somewhat, anyway) fairly easily. No need for all the abstraction when there are actual examples coming out to look at. How would you have applied the principles in your article to the 3rd Circuit ruling? Or any other recent comparable cases, for that matter.

Thanks again for the feedback!

September 16, 2010 | Registered CommenterDan

Ah, no. When I talked about insecurity, I meant the reasonable concern that your communications or personal data could be acquired by government without having done anything wrong—whether or not they actually are. (This comes out more clearly if you read the full Rubenfeld paper.) Vis a vis the NSA wiretap program, for instance, a group of academics and journalists filed suit alleging that their communications with overseas sources had been chilled by the reasonable fear that their communications would be picked up by such a broad and warrantless program. The suit was dismissed for lack of standing because without proof that they had ACTUALLY been wiretapped, they could not show a harm to their privacy. Yet the program had clearly harmed their security in the confidentiality of their communications. Ditto with something like location surveillance. Knowing that the government can track everyone's (public) location at all times might not violate "privacy" exactly, depending on how one chooses to define that term, but it would certainly diminish our feeling of security.

As for cell records, I hate to be the bearer of bad news, but that's the state of the law NOW. Thanks to a misguided ruling in Smith v. Maryland, the government does not currently require a 4th Amendment warrant to get transactional records of all your cell phone activity. In fact, if the FBI is willing to assert it's somehow "relevant" to a national security investigation (maybe you called someone who once spoke with a suspect), they don't even need to go before a judge. They can demand the records on their own say-so with a National Security Letter. Lest there be any doubt, I find this appalling. It's not what I'm advocating at all; it's the status quo.

Incidentally, if you have a minute, I'd be grateful if you could addd a parenthetical note in the main post clarifying; I wouldn't want people who just read the post to think I'm some kind of apologist for the surveillance state.

September 17, 2010 | Unregistered CommenterJulian Sanchez

Thanks again for the feedback, Julian. The main point I was getting at in the post was: The 4th has already been eroded in practice, so anything that further weakens it in theory is especially bad. If you're talking about a standard for security in addition to (not instead of) an expectation of privacy, fantastic. I'd be very concerned about what might be lost in the transition if it simply replaced privacy, particularly in light of how lightly the current standard is being treated.

As for your note on the current state of the law, even those who have standing have had a hell of a time doing anything about it. I'm glad to see you call the Smith ruling misguided, because it's not enough to call out cases like Al-Haramain where the government is clearly playing games (and making a mockery of the standards it is claiming to play by); there needs to be specific advocacy for rolling back the encroachments.

That, along with your position on the current state of law, wasn't clear from your original post, and I'm glad to see your clarification.

I've put an update with your response at the top of the post.

September 17, 2010 | Registered CommenterDan

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