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...
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"'This is really a bill which, if enacted into law, will be [a longer] step in the direction of stopping terrorism than any other we have had before this Congress in a long time,' one of the bill's sponsors declared. The legislation authorized broad surveillance of financial transactions, bypassing the Fourth Amendment's normal protections against 'unreasonable searches and seizures' by requiring businesses to collect and share information with the government. After the measure passed and was signed into law, the debate was far from over. The American Civil Liberties Union and other critics continued to rail against the law as an unnecessary breach of privacy.
'Under the act and regulations the reports go forward to the investigative or prosecuting agency...without notice to the customer,' one civil libertarian wrote. 'Delivery of the records without the requisite hearing of probable cause breaches the Fourth Amendment....I am not yet ready to agree that America is so possessed with evil that we must level all constitutional barriers to give our civil authorities the tools to catch terrorists.'
But times have changed, one of the law's defenders countered. 'While an act conferring such broad authority over transactions such as these might well surprise or even shock those who lived in an earlier era,' he wrote, 'the latter did not...live to see the heavy utilization of our domestic banking system by the minions of organized terrorism as well as by millions of legitimate businessmen.' The author did not 'think it was strange or irrational that Congress, having its attention called to what appeared to be serious and organized efforts to avoid detection of terrorist activity, should have legislated to rectify the situation.'
These may sound like the arguments for and against the USA PATRIOT Act, passed immediately after the attacks of September 11, 2001. But they concern another piece of legislation, the Bank Secrecy Act (BSA) of 1970. The only change I made to these decades-old quotes was to substitute the word terrorist for criminal and terrorism for crime."
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