Thursday, June 16, 2016
Fourth Amendment law is transactional: it focuses on the one-off interaction typified by the singular investigatory search against a particular suspect for a specific crime. Yet surveillance is increasingly programmatic. It is ongoing and cumulative, and the scope of the executive’s search and seizure power is determined by administrative practice. Vindicating Fourth Amendment values today requires more than what the conventional transactional approach has to offer. This Article recasts problems of surveillance as problems of governance and develops an administrative framework to help address them. Administrative law suggests a way to flesh out the requirement for Fourth Amendment “reasonableness” in the exercise of agency discretion, where today’s Fourth Amendment often punts. Administrative law also provides a mechanism, independent of criminal procedure, through which courts can impose more systemic safeguards on privacy. Finally, administrative law points to a set of extrajudicial strategies for addressing surveillance at the level of governance.