48 Pages Posted: 1 Aug 2013 Last revised: 22 Jul 2014
Date Written: April 1, 2014
Surveillance methods in the United States operate under the general principle that “use precedes regulation.” While the general principle of “use precedes regulation” is widely understood, its societal costs have yet to be realized. In the period between “initial use” and “regulation,” government actors can utilize harmful investigative techniques with relative impunity. Assuming a given technique is ultimately subjected to regulation, its preregulation uses are practically exempted from any such regulation due to qualified immunity (for the actor) and the exclusionary rule’s good-faith exception (for any resulting evidence). This expectation of impunity invites strategic government actors to make frequent and arbitrary uses of harmful investigative techniques during preregulation periods. Regulatory delays tend to run long (often a decade or more) and are attributable in no small part to the stalling methods of law enforcement (through assertions of privilege, deceptive funding requests, and strategic sequencing of criminal investigations). While the societal costs of regulatory delay are high, rising, and difficult to control, the conventional efforts to shorten regulatory delays (through expedited legislation and broader rules of Article III standing) have proved ineffective.
This Article introduces an alternative method to control the costs of regulatory delay: 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 Fourth Amendment to safeguard a mere 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” against unreasonable searches and seizures, and possibly a right to be “free from fear” against such government action. Support for these broad readings of “to be secure” is found in the original meaning of “secure,” the Amendment’s structure, and founding-era discourse regarding searches and seizures. The rights to be “protected” and “free from fear” can be adequately safeguarded by a judicially-created rule against government "adoption" of a method that constitutes an unregulated and unreasonable search or seizure. The upshot of this Fourth Amendment rule against “adoption” is earlier standing to challenge the constitutionality of concealed investigative techniques. Earlier access to courts invites earlier judicial regulation which, in turn, helps curb the rising costs of regulatory delay.
Keywords: Fourth Amendment, Privacy, Surveillance
Suggested Citation: Suggested Citation
Milligan, Luke M., The Forgotten Right to Be Secure (April 1, 2014). Hastings Law Journal, Forthcoming; University of Louisville School of Law Legal Studies Research Paper Series No. 2014-20. Available at SSRN: https://ssrn.com/abstract=2302850 or http://dx.doi.org/10.2139/ssrn.2302850