The Forgotten Right to Be Secure
Luke M. Milligan
University of Louisville - Louis D. Brandeis School of Law
July 29, 2013
Hastings Law Journal, Forthcoming
Fourth Amendment commentary frequently centers on the costs of failing to regulate investigative techniques. Equally important, but largely ignored, are the costs of regulatory delay. Nearly every decision to regulate a new investigative technique is based on a finding of undue harm that extends to pre-regulation uses of such technique. As a result, delays in the regulation of new techniques impose certain costs on society. These costs are heightened by law enforcement efforts to conceal the adoption and uses of new investigative techniques (and thereby stall regulatory processes). Unfortunately, the systemic (and rising) costs of regulatory delay cannot be sufficiently checked by conventional methods of reform. Calls for earlier legislation and broader rules of Article III standing have 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 unregulated and unreasonable methods of search and seizure. The upshot of this Fourth Amendment rule 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: 56
Keywords: Fourth Amendment, Privacy, Surveillanceworking papers series
Date posted: August 1, 2013 ; Last revised: September 13, 2013
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