The Case for Surveillance

The Cambridge Handbook of Surveillance Law (David Gray & Stephen E. Henderson eds., 2017)

24 Pages Posted: 11 Jul 2018 Last revised: 26 Jul 2018

See all articles by Lawrence Rosenthal

Lawrence Rosenthal

Chapman University, The Dale E. Fowler School of Law

Date Written: June 27, 2018

Abstract

This contribution to The Cambridge Handbook of Surveillance Law considers the case for official surveillance.

History and reason suggest that some measure of official surveillance is essential to maintain order in a complex society. The lack of officials charged with detecting lawbreaking largely explains the failure of the framing-era regime of law enforcement in the United States, as well as the subsequent failure of the largely reactive model of policing that became dominant in the mid-twentieth century. In a society that permits regulation of activities conducted out of public view, moreover, some measure of surveillance is essential. Regulation is likely to become ineffective whenever violators acquire the means to engage in unlawful activity away from the view of others, free from a meaningful risk of detection.

When official surveillance is circumscribed by law, the risks of engaging in unlawful behavior decline, and we can expect the incidence of crime to increase. Beyond that, when official surveillance is freely permitted only with respect to activities not regarded as private, such as activities occurring in public places, then those who have the resources and sophistication to commit crimes in a covert fashion will run the least risk of detection. This final point suggests that not only the balance between liberty and order implicated by decisions about the extent to which official surveillance is permitted, but equality is implicated as well. A criminal justice system that is able to detect lawbreaking by the rich and poor alike must afford leeway to engage in official surveillance.

Keywords: Surveillance, Fourth Amendment, privacy

Suggested Citation

Rosenthal, Lawrence, The Case for Surveillance (June 27, 2018). The Cambridge Handbook of Surveillance Law (David Gray & Stephen E. Henderson eds., 2017). Available at SSRN: https://ssrn.com/abstract=3203962

Lawrence Rosenthal (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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