Ever wonder how the law adapts to technology that makes it harder or easier for police to search and seize suspected criminals? Orin Kerr posits that an Equilibrium-adjustment exists. "Courts respond to the new facts by trying to restore the old level of protection. If a new technology or practice increased government power, courts ratchet up Fourth Amendment...
Is the Fourth Amendment Really About 'Privacy'?
"Back in June, the American Civil Liberties Union launched a new Web hub called Spy Files, which promises to be an invaluable resource for those of us who make a point of watching the watchers. Probably the most interesting document available on the site at launch was a thorough state by state survey of law enforcement surveillance of protected political and religious association over the past decade. They rounded up a truly disturbing number of instances, spanning 33 states, just from press reports, of undercover officers infiltrating anti-war groups and mosques without obvious grounds to suspect wrongdoing. In the aggregate, as the report itself notes, the effect is eerily reminiscent of the FBI’s infamous COINTELPRO operation, which targeted groups deemed 'subversive' in the 1960s and 70s.
Following the exposure of COINTELPRO and a spate of related intelligence scandals uncovered by Senate investigations during the 70s, the latitude of federal investigators to covertly infiltrate domestic groups was somewhat constrained by Executive Order 12333, signed by President Reagan in 1981. But state and local law enforcement often have a relatively free hand, because under the modern understanding of the Fourth Amendment, the Constitution is concerned only government actions that violate a 'reasonable expectation of privacy,' which courts have generally understood as limited to the exposure of what was previously secret. When we entrust sensitive records to third parties—be they banks, Internet Service Providers, or other members of our churches or political organizations—we 'assume the risk' that they will reveal the information to the government, according to the courts’ logic, and so waive our expectation of privacy.
Legal scholars have long been critical of the reasoning behind this 'third party doctrine,' in particular the 'assumption of risk' argument, but traditionally they’ve accepted the basic frame that the Fourth Amendment should fundamentally be understood as concerned with protecting 'privacy'—though the term itself does not appear in the Constitution—and argued that the court has interpreted the concept too narrowly. Yet a growing number of investigative techniques—from GPS location tracking to DNA analysis—allow the government to conduct an intuitively troubling degree of monitoring, potentially on a vast scale, by targeting information that is at least in some sense 'public.'"
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