Cyber-Surveillance Without Restraint? The Meaning and Social Value of the Probable Cause and Reasonable Suspicion Standards in Governmental Access to Third Party Electronic Records

Abstract

This piece defines probable cause and reasonable suspicion with greater specificity than previously done. The piece, drawing on philosophy and social science, also discusses the social function of these requirements of individualized suspicion. The piece draws to a great extent on the difference between objective and subjective probabilities. This examination is done to better understand the important role individualized suspicion should continue to play in subpoenaing institutional third party records, which are currently unprotected by the Fourth Amendment to the United States Constitution but can be protected under proposed new legislation.

Keywords: probable cause, reasonable suspicion, individualized suspicion, objective probability, subjective probability, standard of proof, preponderance of evidence, probability, third party doctrine, Standards on Law Enforcement Access to Third Party Records

JEL Classification: A10, K10, K14