4th Amendment Thread

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SHADOW ADMINISTRATIVE CONSTITUTIONALISM AND THE CREATION OF SURVEILLANCE CULTURE

Anjali S. Dalal - 2014 Mich. St. L. Rev. 59

HIGHLIGHT:

[T]o those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of good will to remain silent in the face of evil. 1

INTRODUCTION

In the wake of what has been called the "biggest intelligence leak" in the National Security Agency's (NSA) history, 2 exposing "dragnet government surveillance" 3 of American communications and the sharing of that communication between agencies, the country convulsed and began discussing drastic measures to rein in surveillance practices: defunding the NSA, 4 repealing § 215 of the PATRIOT Act, 5 and severely limiting the FBI's authority to collect domestic communications under the Foreign Intelligence Surveillance Act (FISA). 6 Months later, the furor has died down, but as new information from Mr. Snowden's massive trove continues to trickle in, there is still discussion of reform, albeit less drastic. 7

Successful, systemic reform of our surveillance culture requires more than a reflexive response to the latest locus of public outrage; it requires an understanding of the complex conditions that support its existence. This Article suggests that our culture of surveillance is the result of more than just a specific statute or a specific institution. Through a detailed study of the development and evolution of the Attorney General Guidelines, this Article suggests that agencies, engaging in constitutional interpretation with very little oversight or transparency, have shifted the boundaries of acceptable activities and norms regarding domestic surveillance.

...
The Article proceeds in six parts. Part I provides a snapshot of agency norm entrepreneurship that demonstrates the power and promise of administrative constitutionalism. This Part traces the growth of the FBI's domestic surveillance program from its early years until the country was forced into a national conversation on the government surveillance norms that had emerged over the greater part of the twentieth century. In response to this national conversation, the DOJ developed the first-ever Attorney General Guidelines to govern the FBI's domestic surveillance activity. The Guidelines, known as the Levi Guidelines, 15 represented a model instance of agency norm entrepreneurship. By striking a balance between national security needs and civil-liberties guarantees that reflected the tenor of the time, the Levi Guidelines provide an excellent example of agency norm entrepreneurship and a positive snapshot of administrative constitutionalism.

Part II provides an account of shadow administrative constitutionalism at work. This Part details the historical evolution of the Guidelines and the reemergence of surveillance norms. This reemergence suggests a weakness of administrative constitutionalism in practice: after the dust settles and our collective attention begins to fade, agencies continue to actively engage in norm entrepreneurship, but now they do so within the isolated echo chambers of the agencies themselves.

Parts III and IV together explore the rationale behind and consequence of the norms developed in the account of shadow administrative constitutionalism provided in Part II. Part III attributes the instinct toward aggressive national security norms to the powerful, loosely defined nature of the national security mandate and the medieval structure of bureaucracy. Part IV discusses the process by which norms become entrenched in shadow administrative constitutionalism through its two component parts: path dependency and faith in historical practice. Part IV closes with a discussion of the consequence of this account of shadow administrative constitutionalism: surveillance culture. Together, Parts III and IV illustrate that, without the necessary oversight and deliberation, administrative constitutionalism can morph from a powerfully democratic approach to defining the values that bind our country to an illegitimate process by which the bureaucratic impulses of unelected agency actors slowly shape our values and our law.

Part V studies the features of policymaking in the national security arena that inhibit oversight and deliberation. In particular, this Part posits that the "super-deference" granted agencies in charge of national security issues and the secrecy under which national security must necessarily operate makes oversight and deliberation particularly difficult.

Part VI identifies the weak internal and external checks and balances that further facilitated shadow administrative constitutionalism and suggests structural solutions to improve the oversight and deliberation necessary to ensure the legitimacy of administrative constitutionalism.

http://digitalcommons.law.msu.edu/cgi/v ... context=lr

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New police radars can 'see' inside homes

Brad Heath - USA Today - 1/19/15

WASHINGTON — At least 50 U.S. law enforcement agencies have secretly equipped their officers with radar devices that allow them to effectively peer through the walls of houses to see whether anyone is inside, a practice raising new concerns about the extent of government surveillance.

Those agencies, including the FBI and the U.S. Marshals Service, began deploying the radar systems more than two years ago with little notice to the courts and no public disclosure of when or how they would be used. The technology raises legal and privacy issues because the U.S. Supreme Court has said officers generally cannot use high-tech sensors to tell them about the inside of a person's house without first obtaining a search warrant.

The radars work like finely tuned motion detectors, using radio waves to zero in on movements as slight as human breathing from a distance of more than 50 feet. They can detect whether anyone is inside of a house, where they are and whether they are moving.

http://www.usatoday.com/story/news/2015 ... /22007615/

So much for "a man's home is his castle."

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YOUR SECRET STINGRAY'S NO SECRET ANYMORE: THE VANISHING GOVERNMENT MONOPOLY OVER CELL PHONE SURVEILLANCE AND ITS IMPACT ON NATIONAL SECURITY AND CONSUMER PRIVACY

Stephanie K. Pell & Christopher Soghoian - 28 Harv. J. Law & Tec 1 (Fall 2014)

In this Article, we will argue that policymakers did not learn the right lesson from the analog cellular interception vulnerabilities of the 90s: That is, the communications of Americans will only be secured through the use of privacy-enhancing technologies like encryption, not with regulations prohibiting the use or sale of surveillance technology.

Full Article: http://jolt.law.harvard.edu/articles/pd ... LTech1.pdf

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Airspace in the Age of Drones

Troy Rule - 95 B.U.L. Rev. 155 (Jan. 2015)

The growing interest in domestic drones is drawing new attention to unresolved questions regarding the scope of landowners' rights in the airspace above their land. Domestic drones are small, unmanned aircraft capable of delivering packages or capturing photos. Existing aerial trespass and takings laws, which were formulated prior to the advent of modern drone technologies, are ill-equipped to handle conflicts between domestic drone operators and landowners. To establish claims under these laws, landowners generally must prove that an aircraft flew within the nebulous "immediate reaches" of the airspace above their parcels and substantially interfered with their use and enjoyment of their land. The indefinite nature of landowner airspace rights under these rules is already generating confusion and controversy, hindering growth in the fledgling domestic drone industry. This Article applies basic principles of microeconomics and property theory to analyze the complex new property law issues presented by drone technologies. This Article ultimately advocates for legislation giving landowners strict rights to exclude aircraft from a clearly defined column of low-altitude airspace directly above their parcels. Such legislation would clarify landowners' entitlements in low-altitude airspace and thereby promote more efficient governance of this increasingly valuable resource as drones become ever more common in domestic skies.

Full Article: http://www.bu.edu/bulawreview/files/2015/02/RULE.pdf

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Eavesdropping on Our Founding Fathers: How a Return to the Republic's Core Democratic Values Can Help Us Resolve the Surveillance Crisis

Jeffrey S. Brand 6 Harvard National Security Journal 1 (2015)

The urgency of the moment bears emphasis. On Monday morning, June 23, 1975, Senator Tunney gaveled to order his Constitutional Rights and Science, Technology and Commerce subcommittees and uttered words that referenced the ongoing Cold War with the Soviet Union:

We are internalizing the cold war-turning upon ourselves its attitudes, techniques, and technologies. If that is true, then the White House enemies list was not an aberration, but a brief reflection of reality. And certainly the revelations of the recent past reinforce this belief by demonstrating the inherent danger of concentrating extraordinary powers behind a rigid curtain of secrecy. Continued ignorance of surveillance technology--its size and structure as a separate industry, the justifications for its growth, its impact on society--could prove to be an Orwellian catastrophe for our privacy and our freedoms.

Those chilling words should haunt us today: The likes of Stellar Wind, TSP, and Prism "may not be aberrations" but "reflections of a reality" that we have "internalized" in an endless War on Terror. They too may demonstrate "the inherent danger of concentrating extraordinary powers behind a rigid curtain of secrecy." They too may portend a "an Orwellian catastrophe for our privacy and our freedoms."

It is said that in 1789, Benjamin Franklin, elderly and ill, upon leaving the Constitutional Convention was asked by a woman passerby: "What have you wrought?" Franklin replied: "A Republic madam, if you can keep it."

http://harvardnsj.org/wp-content/upload ... /Brand.pdf

Excellent article, well worth reading.

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MEET YOUR NEW BIG BROTHER: WEIGHING THE PRIVACY IMPLICATIONS OF PHYSICAL RETAIL STORES USING TRACKING TECHNOLOGY

Jessica Gallinaro - 22 Geo. Mason L. Rev. 473 (Winter 2015)

This Comment analyzes the potential privacy concerns implicated by brick-and-mortar retail stores' uses of tracking technology. It argues that, in the absence of legislation, courts should weigh the consumers' interests against those of the retailers to determine whether a retailer's use of the technology infringes on consumers' privacy. Part I provides a brief description of the mechanics of tracking technology. It also discusses the lack of a recent legislative response to tracking technology. Part I then examines judicial decisions on the government's use of tracking technology, and discusses how courts can impose limits on retailers that are similar to the ones that already restrict the government. Part I concludes by explaining why courts can regulate this kind of activity by private, nongovernmental actors. Part II analyzes the different interests to consider, including how a brick-and-mortar retail store's use of tracking technology affects shoppers' privacy, the retailer's need for technology that hones marketing strategies in order to compete with online retailers, and how consumers, in turn, benefit from those strategies. Finally, Part III argues that retailers' current use of tracking technology does not fully consider consumers' interests because retailers do not adequately protect consumers from the potential security breaches that this kind of technology creates. To balance the scales so that both retailers and consumers' interests are accounted for, courts must step in and ensure that retailers and consumers compromise.

Full Article: http://www.georgemasonlawreview.org/wp- ... ebsite.pdf

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Consequence, Weapons of Mass Destruction, and the Fourth Amendment's "No-Win" Scenario

Scott J. Glick - 90 Ind. L.J. 1 (2015)

Abstract:

What is the role that consequence should play in a Fourth Amendment analysis? Should our view of reasonableness be affected by the nature of the consequence that the government seeks to prevent, such as stopping a terrorist from using a weapon of mass destruction (WMD)? While some may consider the use of a WMD by a terrorist to be a plot for an action movie, since the September 11, 2001, attacks, there have been increasing indications that malicious actors or organizations are attempting to obtain a WMD in order to cause massive devastation or catastrophic loss of life. Aside from advancements in technology that may enable the government to deploy an effective system of WMD sensors in the future, one of the most effective methods that the government could employ to locate a suspected terrorist who intended to use a WMD in an American city would be to monitor the terrorist’s communications.

But what if the government did not know the specific telephone or e-mail account that the suspected terrorist was using, even though it had specific and credible information that he intended to assemble and use the WMD sometime within the next 30 to 45 days? If the nation was not at war, how should a federal court resolve the constitutional tension that would arise if, instead of seeking a wiretap order that targeted a particular telephone or e-mail account, the government sought an order permitting it to target an indeterminate number of communications devices within that city, because that is the only way to find the terrorist and prevent the use of the WMD? Should the court refuse to issue such an order because the Fourth Amendment tolerates no other result, even though it could lead to massive destruction or catastrophic loss of life?

The hypothetical presents what some may call the Fourth Amendment’s “no-win” scenario, and it enables us to explore what very well may be some of the most challenging constitutional questions of our time. First, should consequence – that is, the nature and gravity of harm the government seeks to prevent – ever play an outcome-determinative role in a Fourth Amendment analysis? Equally important: who should decide whether consequence has a role to play? And, finally, how can government officials, who are responsible for protecting the nation from terrorists who seek to cause massive destruction or a catastrophic loss of life, obtain greater ex ante certainty in regard to the constitutionality of their preventative actions?

This article looks at consequence, with a particular focus on the threatened use of a WMD, to begin a discussion on a new doctrinal solution to the hypothetical. As background, Part I takes a look at cardinal Fourth Amendment principles and rules, as well as the many exceptions to the warrant, probable cause and particularity requirements that the Supreme Court has recognized. Part I also discusses minimization, a well-established privacy enhancing mechanism that normally serves as a back-end check on the government’s conduct, to determine whether it can serve as a front-end substitute for the Fourth Amendment’s particularity requirement. Based on publicly available information, Part II briefly explores the differences between chemical, biological, radiological, and nuclear WMDs, and the different consequences that can be reasonably anticipated from their respective use. Identifying these differences is critical to understanding how the significant definitional issues identified in Part III might affect the implementation of any new doctrinal solution. Part IV then looks at these issues through what I have elsewhere described as the “Fourth Amendment’s protective lens” and proposes that we use a probability-consequence matrix as an analytical framework to solve the “no-win” scenario. Finally, Part V seeks to lay out a path forward so that the Congress can consider and enact sensible legislation that will enable us to identify the limited circumstances in which consequence should be considered a factor in a Fourth Amendment calculus, particularly when a terrorist threatens to use a WMD.

Full Article: http://www.repository.law.indiana.edu/c ... ontext=ilj
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http://papers.ssrn.com/sol3/papers.cfm? ... id=2478739

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Bulk Telephony Metadata Collection and the Fourth Amendment: The Case for Revisiting the Third-Party Disclosure Doctrine the Digital Age

Timothy J. Geverd - 31 J. Marshall J. Info. Tech. & Privacy L. 191

Abstract:

Thus far, two United States District Courts have considered the legality of the National Security Agency’s bulk data collection and have reached opposite conclusions. This Paper argues that federal courts should seize on the opportunity presented by the Snowden leaks to reexamine the continued vitality of the current third-party disclosure doctrine in Fourth Amendment cases. Specifically, this Paper will argue that Smith v. Maryland simply cannot continue to act as the “North Star” for judges navigating the “Fourth Amendment waters” of the digital age. Instead, this Paper argues that Smith should apply more narrowly in the digital age. In doing so, this Paper advocates that courts apply a modified, two-step test to third-party disclosures rather than applying the traditional binary rubric that courts have drawn from Smith and United States v. Miller — i.e., if information is disclosed that information is unprotected. Specifically, this Paper suggests that courts ask first, what individuals reasonably expect the scope of their disclosure to be and, second, whether a particular surveillance program is capable of revealing information beyond what those individuals reasonably expected to reveal. If the technology reveals information beyond that which individuals reasonably expected to reveal, then the use of such technology implicates the Fourth Amendment.

Full Article: http://papers.ssrn.com/sol3/papers.cfm? ... id=2456053

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A Slow March Towards Though Crime: How the Department of Homeland Security's FAST Program Violates the Fourth Amendment:

Christopher A. Rodgers - American University Law Review, Volume 64; J.D.Candidate, May 2015

http://www.aulawreview.org/pdfs/64/64.2 ... ebsite.pdf

It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. A nervous tic, an unconscious look of anxiety, a habit of muttering to yourself—anything that carried with it the suggestion of abnormality, of having something to hide. . . . Your worst enemy, he reflected, was your nervous system. At any moment the tension inside you was liable to translate itself into some visible symptom. - George Orwell, Nineteen Eighty-Four

The United States Government is currently developing a system that can read minds—a situation that George Orwell envisioned when he wrote Nineteen Eighty-Four. The Future Attribute Screening Technology (“FAST”), currently being tested by the U.S. Department of Homeland Security (DHS), employs a variety of sensor suites to scan a person’s vital signs, and based on those readings, to determine whether the scanned person has “malintent”—the intent to commit a crime.

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The Privacies of Life: Automatic License Plate Recognition is Unconstitutional Under the Mosaic Theory of Fourth Amendment Privacy Law

Jessica Gutierrez Alm - 38 Hamline L. Rev. 127 (2014-15)

The Fourth Amendment, which protects citizens' "reasonable expectation of privacy" by preventing unreasonable searches and seizures, is implicated by such indiscriminate data collection. 13 Although it is well-accepted in Fourth Amendment jurisprudence that there is no reasonable expectation of privacy in a person's travels on public roads, multiple points of location compiled over time may reveal intimate personal details. 14 The "mosaic theory," as set forth in United States v. Maynard and approved by the United States v. Jones concurrences, applies the doctrine of reasonable expectations to compiled location data. 15 When ALPR data on a person's license plate is compiled and examined in a mosaic, it violates the driver's reasonable expectation of privacy and infringes Fourth Amendment protections. 16

Part II of this article begins with a discussion of the widespread use of ALPR systems and the advanced technological capabilities of the devices. 17 Next is an examination of the United States Supreme Court's development of Fourth Amendment privacy law concepts and the various tests developed to determine the existence of an infringement. 18 Part II concludes with a look at the mosaic theory applied to privacy law, as set forth by the United States v. Maynard majority and concurring opinions in United States v. Jones. 19 Part III then argues that widespread collection and compilation of ALPR data violates the Fourth Amendment right to privacy under the mosaic basis of analysis. 20 Finally, Part III suggests that, as an alternative to adoption of the mosaic theory, ALPR data collection practices should be regulated by legislatures.

Full Article: http://digitalcommons.hamline.edu/hlr/vol38/iss1/5/