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Protecting Privacy

Matthew Feeney

The Fourth Amendment is in a sorry state. The constitutional
provision intended to protect us and our property from unreasonable
searches and seizures has been weakened over decades-a fact that
ought to be of acute concern at a time when surveillance technology
is increasingly intrusive and secretive. A modernization of Fourth
Amendment doctrines is long overdue.

In his new book, The Fourth Amendment in an Age of Surveillance,
David Gray, a professor at the University of Maryland’s Francis
King Carey School of Law, attempts to outline what such a
modernization might look like. To establish why reform is
necessary, he offers a historical account. Gray traces the concepts
embodied in the amendment back to mid-18th-century concerns in both
England and the American colonies about overly broad permissions
for executive agents. In England, the focus of the controversy was
general warrants, which were vague in purpose and almost unlimited
in scope.

In the colonies, the controversy focused on writs of assistance,
a specialized kind of general warrant, ripe for abuse. In a
five-hour-long speech before the Massachusetts
Superior Court in 1761, the lawyer James Otis Jr. condemned writs
of assistance, declaring them “the worst instrument of arbitrary
power, the most destructive of English liberty.” John Adams, who
witnessed Otis’s oration, decades later described it as the moment
when “the Child Independence was born.” A distaste
for needless and indiscriminate intrusions into homes and other
property is thus baked into America’s revolutionary DNA. It was
eventually codified in the Fourth Amendment, with its prohibition
of “unreasonable searches and seizures” and guarantee that “no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.”

How the Fourth Amendment
can keep up with high-tech surveillance.

The doctrines used in interpreting the amendment have evolved
over time. The rise of modern police forces prompted the judiciary
to develop the exclusionary rule (which ensures that evidence
collected via Fourth Amendment violations is inadmissible), the
Miranda warning (which, as anyone who has seen a TV cop
show in the last four decades can tell you, holds that once you’re
in police custody officers must tell you that you have the right to
remain silent and the right to an attorney), and the warrant
requirement (which holds that searches are per se unreasonable if
they’re conducted without prior approval from a judge or
magistrate).

The interpretation of the Fourth Amendment has also evolved in
response to technological development. Notably, the advent of
eavesdropping devices gave rise to the “reasonable expectation of
privacy” test, first formulated in Supreme Court Justice John
Harlan’s concurrence in Katz v. United States (1967)
and subsequently adopted by the Court. According to the test,
government agents have conducted what the law considers a “search”
if they have violated an individual’s subjective expectation of
privacy and if that expectation is one that society is prepared to
accept as reasonable.

“Unfortunately,” Gray writes, “the Katz test has proven
inadequate to the task of regulating the means, methods, and
technologies that have come to define our contemporary age of
surveillance.” Gray puts in his crosshairs three
post-Katzdoctrines that have had the effect of leaving
some of the most intrusive surveillance technologies outside the
purview of Fourth Amendment challenge.

First, thanks to the “public observation doctrine,” police do
not necessarily need a warrant to peek into your backyard with a
drone. (Some states have passed legislation mandating warrants for
drone surveillance, but these requirements go beyond what is
required by current Fourth Amendment interpretation.) Nor do police
need a warrant to track your public activities for days at a time.
As Gray points out, there wouldn’t even seem to be a Fourth
Amendment issue if the government were to install GPS trackers in
every car or computer and then use those trackers to keep
an eye on all citizens’ public movements. After all, as the
Katz Court held, “What a person knowingly exposes to the
public, even in his own home or office, is not a subject of Fourth
Amendment protection.”

The “third-party doctrine” likewise offers little reassurance.
According to this doctrine, you have no reasonable expectation of
privacy in information you voluntarily surrender to third parties,
such as Internet providers and banks.

In an era of Big Data and ubiquitous electronic communication,
the implications of the third-party doctrine are significant. For
example, police today can deploy devices called “stingrays” that
mimic cellular towers. Each cell phone is constantly playing a game
of Marco Polo with nearby cell towers, seeking a connection. A
stingray emits a boosted signal, forcing all nearby phones to
connect to it. This allows police to monitor the location of a
target’s cell phone. Using a stingray, law enforcement can also
uncover information about a target’s communications, such as the
number of texts sent, the recipients of texts, the phone numbers
dialed, and the duration of calls. But stingrays can also collect
all of this information about the communications of innocent
people. Thanks to the third-party doctrine, there is no clear
Fourth Amendment remedy to this invasion of privacy.

Finally, the rules about legal “standing” in Fourth Amendment
cases have, according to Gray, also weakened the remedies available
to citizens. Under the rules that emerged after Katz,
plaintiffs must demonstrate that they have suffered a violation of
their reasonable expectation of privacy. So, for example, citizens
outraged about the National Security Agency’s metadata collection
program lack the standing to file their own Fourth Amendment suits;
they have to be able to explain how the program violated their
reasonable expectations of privacy. Or, in another instance, when
Amnesty International challenged the FISA Amendments Act of 2008, a
law giving the federal government broad power to snoop on U.S.
citizens’ international communications, the Supreme Court ruled in
2013 that the organization lacked standing to challenge the law,
even though Amnesty works with many international partners. As
Justice Samuel Alito wrote for the Court, “respondents cannot
manufacture standing merely by inflicting harm on themselves based
on their fears of hypothetical future harm that is not certainly
impending.”

With its citations from old dictionaries and other contemporary
texts, Gray’s exhaustive word-by-word and clause-by-clause
dissection of the Fourth Amendment should appeal to originalists.
His take on standing may raise a few eyebrows, but he does a noble
job of defending his claim that an original public understanding of
the Fourth Amendment reveals that it protects a collective right to
prospective relief, not just relief for past individual harms. The
amendment does protect individuals, Gray believes, but its
individual protections are derived from the collective right.

Gray proposes several ways to improve Fourth Amendment
protections in light of the high-tech surveillance techniques that
are now available to authorities. Surveillance conducted by drones
and stingrays could, he argues, be curtailed via a remedy modeled
on the Wiretap Act. Under that 1968 legislation, passed in the wake
of the Katz ruling, officers seeking a wiretap order must
establish probable cause, exhaust other investigative methods, and
ensure that the wiretap is time-limited. The act also requires that
officers regularly report back to the court that issued the wiretap
warrant.

When it comes to Big Data, Gray proposes a range of constraints
governing the aggregation, collection, analysis, and storage of
data.

Perhaps Gray’s most interesting proposal flows from his
collective-right theory of the Fourth Amendment. He would allow
individuals and organizations to have standing to challenge
programs that threaten the people as a whole. This would allow,
say, the American Civil Liberties Union to challenge the legality
of New York City’s stop-and-frisk program. Such other programs and
technologies as persistent aerial surveillance, metadata
surveillance, and license-plate readers would be open to challenge
under Gray’s understanding of the Fourth Amendment.

Not everyone will be convinced by Gray’s analysis. Some critics
will undoubtedly dispute his collective-right theory of the Fourth
Amendment and quibble with his Wiretap Act-like remedies. However,
these disagreements will not detract from the fact that his book is
a welcome and informative contribution to the public debate about
surveillance-a debate that will lastingly shape how we live
together and how we understand privacy and liberty.

Matthew Feeney is a policy analyst at the Cato Institute.