Privacy at Risk: The New Government Surveillance and the Fourth Amendment

Abstract

This book focuses on a significant new development in the government's surveillance efforts: the use of sophisticated technology to observe our daily activities (physical surveillance) and to peruse records of those activities (transaction surveillance). Wiretapping, bugging, and other forms of communications surveillance are clearly regulated by the Constitution, more specifically the Fourth Amendment's prohibition on unreasonable searches and seizures. In contrast, many types of physical and transaction surveillance are not formally recognized as searches that implicate the Fourth Amendment. As a result, much of this surveillance, although a search in effect, is not seriously regulated by law. This book is meant to prod legislatures and courts into more meaningful constraints on physical and transaction surveillance. The principal means of doing so is through a rejuvenation of the Fourth Amendment's reasonableness inquiry, which requires justification proportionate to the intrusion visited by the government's action and ex ante review of the contemplated intrusion in non-emergency situations. The book makes use of Fourth Amendment doctrine, sociological literature on the effects of surveillance and original empirical research to make its case. The link is to an excerpt from Chapter One which provides a more detailed description of the book's chapters.

Keywords: surveillance, Fourth Amendment, privacy, CCTV, subpoenas, data mining, National Security Letters, ECPA, transaction surveillance, physical surveillance, communications surveillance, Katz, Kyllo, Miller, Smith, search and seizure