National Security, Narcissism, Voyeurism, and Kyllo: How Intelligence Programs and Social Norms are Affecting the Fourth Amendment

Abstract

This article begins by tracing the development of Fourth Amendment jurisprudence in light of technological advancements from when the Supreme Court first addressed wiretapping in Olmstead in 1928, all the way through Kyllo, decided in 2001, mere months before the 9/11 terrorist attacks. We bifurcate that criminal law history from the national security law developments that led to the enactment of the Foreign Intelligence Surveillance Act, and the "wall" between law enforcement and intelligence organs of the federal government.

Since the 9/11 attacks, however, traditional law enforcement and national security investigations (and investigatory methods) are more closely linked than when the key Supreme Court cases were decided. Further, surveillance and data collection capabilities are more widely reported and openly discussed than ever before. And, despite those two facts, the ways in which society has been employing technology in everyday use means the formerly private details of peoples' lives are more exposed and vulnerable than ever.

We seek to qualify somewhat the growing consensus that, at least as it was known in the twentieth century, "privacy is dead." Although that sentiment seems empirically correct, we argue it is an oversimplification that fails to account for American values and legal policy. We recognize as a morally neutral proposition that privacy is a legal fiction, but argue that it is a fiction best maintained and protected to the extent possible, given the unambiguous willingness of people en masse to sacrifice their privacy for mere convenience and token benefits.

Keywords: national security, surveillance, big data, NSA, Snowden, wiretapping, FISA, intelligence, foreign intelligence, FBI, criminal law, counterterrorism, terrorism, Fourth Amendment, search and seizure, technology