Do We Need a New Fourth Amendment?

16 Pages Posted: 20 Aug 2008 Last revised: 23 Nov 2011

Orin S. Kerr

The George Washington University Law School

Date Written: November 19, 2011

Abstract

In his new book, 'Privacy At Risk,' Professor Christopher Slobogin offers a new approach to the Fourth Amendment designed to impose more restrictions on government surveillance practices. He contends that the Fourth Amendment should be organized around a proportionality principle: Every investigative technique should require some cause, and public opinion as to the intrusiveness of the technique should determine how much cause is required. Professor Slobogin applies this principle to transactional surveillance and closed circuit television and generates a complex set of proposed Fourth Amendment rules to govern their use by government actors.

In this book review, Professor Orin Kerr argues that even a Supreme Court sympathetic to Slobogin's policy preferences should be wary of his proposal. Slobogin's method suffers from two major flaws. First, the proportionality principle does not accurately weigh the interests it claims to weigh. Public perceptions of intrusiveness do not measure privacy interests, and the government's level of proof does not measure government interests. Further, the method stacks the deck in favor of limiting government action by ignoring the context in which techniques are used. Second, a future Supreme Court could reach Slobogin's results in much simpler ways. Slobogin's approach is surprisingly complicated, as it requires courts to master the intricacies of public opinion surveys to determine public perceptions of intrusiveness. Easier paths exist if a future Supreme Court majority wishes to regulate transactional and public surveillance under the Fourth Amendment.

Keywords: Fourth Amendment, surveillance, CCTV, Slobogin

JEL Classification: K1, K14

Suggested Citation

Kerr, Orin S., Do We Need a New Fourth Amendment? (November 19, 2011). Michigan Law Review, Vol. 107, p. 561, 2009; GWU Legal Studies Research Paper No. 426; GWU Law School Public Law Research Paper No. 426. Available at SSRN: https://ssrn.com/abstract=1236522

Orin S. Kerr (Contact Author)

The George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4775 (Phone)
202-994-9817 (Fax)

HOME PAGE: http://www.law.gwu.edu/orin-s-kerr

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