Wednesday, April 2, 2014
Tonja Jacobi and Jonah Kind (Northwestern University - School of Law and Northwestern University - School of Law) have posted Criminal Innovation and the Warrant Requirement: Reconsidering the Rights-Police Efficiency Trade-Off (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:
It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between police investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited police resources to develop countermeasures, police will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game theoretic model that shows that when police investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale for lowering Fourth Amendment rights is often inapt. We analyze how this impacts both criminal activity and innocent communications that individuals seek to keep private in the digital age. We show that both law enforcement and non-criminal privacy concerns may be better promoted by maintaining the warrant requirement.