Political Surveillance and the Fourth Amendment

20 Pages Posted: 29 Feb 2020

See all articles by Alan Meisel

Alan Meisel

University of Pittsburgh - School of Law (Emeritus)

Date Written: 1973

Abstract

The United States District Court case has left the scope of the warrant protection of the fourth amendment considerably clearer and broader. The door left ajar in Katz has been firmly fastened shut by the Court leaving only the traditional exceptions to the warrant requirement, which are based upon practical necessity, and the still unconfronted question of the power of the executive to conduct warrantless surveillances of foreign agents in national security cases." It is also clear that courts are no less competent to evaluate the appropriateness of a search and seizure in an internal security case than in a case of "ordinary" crime. In fact, judicial scrutiny is all the more essential because of the presence of first amendment considerations. But most significant is the fact that the government's attempt to revitalize the general warrant in the guise of national security has been decisively thwarted. No more will the incantation of the mystical phrase "national security" shield the government from the necessity of obtaining a warrant. Political surveillance, like an orthodox search and seizure, requires the full protection of the fourth amendment, if not a fuller protection bolstered by the first amendment. The task of implementing the right to be free from government surveillance will in the long run prove to be more difficult than was the task of establishing the right. Even if the extremely difficult barrier to the implementation of remedies for illegal surveillance can be overcome-that is, discovery of the existence of the surveillance-criminal penalties and monetary awards can never truly compensate the individual for the loss of dignity suffered as a consequence of a surreptitious invasion of privacy. And as long as the detection of surveillance faces grave technological and legal obstacles, there may be little effective deterrent to the use of illegal surveillance. In the final analysis, therefore, the application of the warrant requirement to political surveillance-as in all other forms of search and seizure for which it is required"' - necessitates the same kind of voluntary and good faith compliance by governmental officials with constitutionally sanctioned procedures as do all other instances of the implementation of fundamental rights of the individual. Sadly, the events of recent years and months indicate the paucity of bona fides among our elected officials and their appointed assistants.

Keywords: Fourth Amendment, search and seizure, government surveillance, warrants, privacy, Katz

Suggested Citation

Meisel, Alan, Political Surveillance and the Fourth Amendment (1973). University of Pittsburgh Law Review, Vol. 35, p. 53, 1973, U. of Pittsburgh Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3532129

Alan Meisel (Contact Author)

University of Pittsburgh - School of Law (Emeritus) ( email )

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Pittsburgh, PA 15260
United States
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