The Notice Paradox: Secret Surveillance, Criminal Defendants & the Right to Notice

Abstract

In this Article, we seek to explain the legal and factual components of the Notice Paradox. The Notice Paradox exists because at precisely the moment that novel and legally untested surveillance techniques are multiplying, one of the most essential restraints on illegal searches — notice — is fast disappearing. Though the Paradox affects, in principle, all Americans, this Article explores those effects chiefly with respect to criminal defendants. In Part II, we recount the historical and legal roots of the notice requirement, and we explain its practical significance in the context of government searches and criminal prosecutions. Part III, a survey of recent disclosures about secret uses of electronic surveillance and the government’s manipulation of the notice right, illustrates the significant shift away from notice as a given, as well as some of the associated dangers of that trend. We conclude in Part IV by suggesting several legal and policy recommendations that would help mitigate the costs of faltering notice to individuals and society at large.

Keywords: surveillance notice, FAA, FISA, due process, metadata