To Be Secure
Luke M. Milligan
University of Louisville - Louis D. Brandeis School of Law
July 29, 2013
Hastings Law Journal, Forthcoming
Surveillance methods in the United States operate under the general principle that “use precedes regulation.” This comes as no surprise to the lawyer or policy maker who has sought the regulation of a new investigative technique (either by judicial or legislative means). While the principle that “use precedes regulation” is widely realized, its implications are not yet fully understood. In the period between “initial use” and “regulation,” government actors are more or less unconstrained by law: assuming a given technique is ultimately subjected to regulation, any pre-regulation uses will be practically exempt from such regulation due to qualified immunity (for the actor) and the exclusionary rule’s good-faith exception (for any resulting evidence). The likelihood of impunity during pre-regulation periods invites strategic government actors to make frequent and arbitrary uses of harmful investigative techniques. Here in the United States regulatory delays tend to be long (oftentimes running a decade or more). These delays are attributable in no small part to the stalling methods of law enforcement (through assertions of privilege, deceptive funding requests, and strategic sequencing of criminal investigations). Unfortunately, the costs of regulatory delay are unlikely to be checked by conventional methods of reform. Calls for earlier legislation and broader rules of Article III standing have so far proved ineffective.
This Article introduces an alternative approach: locating rights to be “protected” and “free from fear” in the “to be secure” text of the Fourth Amendment. Courts and most commentators interpret the Amendment to merely safeguard a right to be “spared” unreasonable searches and seizures. A study of the “to be secure” text, however, suggests that the Amendment can be read more broadly: to guarantee a right to be “protected” (and possibly a right to be “free from fear”). Support for these broad readings of “to be secure” lies in the original meaning of “secure,” the Amendment’s structure, and founding-era discourse regarding searches and seizures (which regularly emphasized the harms attributable to the potentiality of unreasonable searches and seizures). The individual rights to be “protected” and “free from fear” can be adequately safeguarded by a judicially-created rule against government adoption of a method that constitutes an unregulated and unreasonable search or seizure. The upshot of this Fourth Amendment rule against “adoption” is earlier standing to challenge the constitutionality of concealed investigative techniques. Earlier access to courts invites earlier judicial regulation, which, in turn, provides an important check on the rising costs of regulatory delay.
Number of Pages in PDF File: 61
Keywords: Fourth Amendment, Privacy, SurveillanceAccepted Paper Series
Date posted: August 1, 2013 ; Last revised: January 22, 2014
© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.
This page was processed by apollo7 in 0.329 seconds