Proportionality, Privacy and Public Opinion: A Reply to Kerr and Swire

Abstract:     
This Article responds to two reviews of my book, Privacy at Risk: The New Government Surveillance and the Fourth Amendment (University of Chicago Press, 2007). The book criticizes Supreme Court decisions that immunize from constitutional challenge numerous government surveillance techniques, including monitoring of public activities, spying on the home using generally available technology, and aggregation of records describing everyday transactions. Privacy at Risk proposes instead that the Fourth Amendment be read to permit only those surveillance techniques that produce a success rate roughly proportionate to the intrusion they visit upon those affected, and argues that intrusiveness should be measured empirically rather than simply determined through guesswork. In their reviews of the book, Professor Swire finds this proportionality idea attractive but would tweak it, while Professor Kerr argues that intrusions on civil liberties should be gauged “normatively” rather than empirically and that the justification for a particular intrusion should depend on numerous variables besides the extent to which it is likely to produce evidence of wrongdoing. This Article defends my original proposals and adds discussion about (1) the relevance of empirical findings to constitutional adjudication and (2) the relevance of political process theory to surveillance of groups.

Number of Pages in PDF File: 33

Keywords: Fourth Amendment, privacy, third party doctrine, surveillance, proportionality principle, political process theory

Accepted Paper Series