Cost-Benefit Analysis and the Digital Fourth Amendment

Abstract

Review of Ric Simmons, Smart Surveillance: How to Interpret the Fourth Amendment in the Twenty-First Century (2019).

In "Smart Surveillance," Ric Simmons argues for the application of cost-benefit analysis (CBA) to digital surveillance. This review argues that, although Simmons is right to look to CBA as a tool for applying the Fourth Amendment to new technology, his faith in the courts as the main practitioners of surveillance CBA is misguided. Across a variety of dimensions of institutional competence, the political branches, not the courts, are best placed to make surveillance policy under conditions of technological change.

Keywords: Fourth Amendment, surveillance, cost-benefit analysis