21 Pages Posted: 25 Aug 2010 Last revised: 31 Aug 2012
Date Written: August 25, 2010
We are in a period of intense technological change. The continued explosive growth in technology has two major effects on the scope and application of the Fourth Amendment. First, the diffusion of powerful new technologies like DNA synthesis and high-powered computing makes it far easier than ever before for ill-meaning groups or individuals to obtain powerful and destructive weapons. Regardless of who is perceived to desire such weapons, the very existence and potential use of such weapons poses a permanent and growing threat to national security. Second, with the development of new technologies, governments are finding it increasingly cheap and easy to conduct intrusive surveillance on their populations and to obtain data and information about individuals in quantities and in detail never before imagined. For both of these reasons, states are increasingly likely to adopt strategies of pervasive surveillance.
Fourth Amendment doctrine has failed to respond adequately to these trends. First, Fourth Amendment law – mainly, the so-called “third party doctrine” – fails to adequately protect privacy in light of new technology. Second, the few limits that have been placed on government use of technology threaten the ability of the state to conduct the type of surveillance necessary to effectively combat the risks posed by terrorism. The solution suggested is to shift the focus of the Fourth Amendment from its longstanding concern with acquisition of information to its use. Current practices already suggest that people generally are less concerned about revealing private information to others under appropriate circumstances than they are in ensuring that these limited disclosures are not misused by their recipients. In a future world where dangerous technologies are cheap and easily obtained, the critical problem will be to safeguard the population through carefully targeted surveillance, while ensuring that such surveillance cannot be used for pretextual or politically oppressive purposes.
Keywords: technology, surveillance, DNA, Fourth Amendment, criminal procedure, criminal law, third party doctrine
JEL Classification: K14, K42
Suggested Citation: Suggested Citation
Covey, Russell D., Pervasive Surveillance and the Future of the Fourth Amendment (August 25, 2010). Mississippi Law Journal, Vol. 80, No. 4, 2010; Georgia State University College of Law, Legal Studies Research Paper No. 2010-14. Available at SSRN: https://ssrn.com/abstract=1665884