Friday, July 23, 2010
This article examines group-focused police investigation techniques — for instance, roadblocks, drug testing programs, area or industry-wide health and safety inspections, data mining, and camera surveillance — a phenomenon referred to as “government dragnets” because these general searches and seizures attempt to cull out bad actors through ensnaring a much larger number of individuals who are innocent of any wrongdoing. The courts have imposed few limitations on dragnets. Recent commentary has either advocated an even more laissez-faire attitude toward these group search and seizures or, at the other end of the spectrum, proposed schemes that would make most of them impossible. This article proposes an intermediate ground, relying on political-process theory and proportionality and exigency considerations. In combination, these regulatory regimes would create a presumption that dragnets authorized by narrow, nondiscriminatory legislative enactments are valid, but would also require that, on those frequent occasions when the presumption does not apply, the government demonstrate either that its “hit rate” will likely be proportionate to the intrusion visited on dragnet subjects or that the dragnet is necessary to prevent significant, specific, and imminent harm.