Wednesday, June 13, 2012
Paul Ohm (University of Colorado Law School) has posted The Fourth Amendment in a World Without Privacy (Mississippi Law Journal, Vol. 81, No. 5, p. 1309, 2012) on SSRN. Here is the abstract:
This Article explores the relationship between private and public surveillance. Every year, companies spend millions of dollars developing new services that track, store, and share the words, movements, and even the thoughts of their customers. Millions now own sophisticated tracking devices (smart phones) studded with sensors and always connected to the Internet. They have been coaxed to use these devices to access fun and valuable services to share more information, more of the time. Our country is rapidly becoming a surveillance society.
Meanwhile, the police can access the records that the surveillance society produces and stores with few impediments. Current Fourth Amendment doctrine — premised on the reasonable expectation of privacy test and elaborated through principles such as assumption of risk, knowing exposure, and general public use — places far fewer hurdles in front of the police when they use the fruits of somebody else’s surveillance than when they do the surveillance themselves. As the surveillance society expands, the police will learn to rely more on the products of private surveillance, and will shift their time, energy, and money away from traditional self-help policing, becoming passive consumers rather than active producers of surveillance. Private industry is destined to become the unwitting research and development arm of the FBI. If we continue to interpret the Fourth Amendment as we always have, we will find ourselves not only in a surveillance society, but also in a surveillance state.
If we believe that the Fourth Amendment can and should survive the coming reach of private surveillance, it is not enough to prescribe mild tweaks to the third-party doctrine. A more thorough reinvention of the Fourth Amendment is in order. We should rebuild the Fourth Amendment atop a foundation of something other than privacy, and this Article extends the work of other scholars who have convincingly suggested that the Fourth Amendment was originally intended and is better interpreted to ensure not privacy but liberty from undue government power.