Ending the zero-sum game: how to increase the productivity of the Fourth Amendment.

AuthorSimmons, Ric
PositionIntroduction to II. Applying the Model A. Lowering the Administrative Cost of Surveillance, p. 549-579s - Privacy, Security, and Human Dignity in the Digital Age

INTRODUCTION I. APPLYING ECONOMIC ANALYSIS TO FOURTH AMENDMENT DOCTRINE A. Costs of Surveillance B. Benefits of Surveillance II. APPLYING THE MODEL A. Lowering the Administrative Cost of Surveillance 1. Cheaper Surveillance That Is No More Intrusive 2. Cheaper Surveillance That (May Be) More Intrusive B. Surveillance Techniques Which Are As Effective But Less Intrusive 1. Binary Surveillance 2. Diminishing Societal Expectations of Privacy C. Case Study: Surveillance at Airport Security Checkpoints CONCLUSION INTRODUCTION

Every criminal procedure student learns on the first day of class that Fourth Amendment policy represents a zero-sum game: a constant struggle between the individual privacy of citizens and the needs of law enforcement. (1) The job of the courts is to mediate that struggle, to be referees in the "game" of cat-and-mouse between the police officer and the criminal. Before the Fourth Amendment was ever written, the parameters of the "game" were well-established when Benjamin Franklin declared, "[t]hey who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." (2) The implication is clear: there is, and always will be, a trade-off between liberty and security, and the only way to get more security is to forfeit some liberty.

Judges frequently refer to criminal investigations as a competitive enterprise, in which the job of the courts is to maintain the status quo between both sides. The Supreme Court has repeatedly stated that the purpose of the Fourth Amendment is to act as a safeguard against the law enforcement officer "engaged in the often competitive enterprise of ferreting out crime." (3) Most recently, the concept of ensuring a fair competition between opposing sides has been on display in the cases involving the government's use of Global Position System (GPS) tracking devices. Judges opposed to these devices argue that their use unfairly tips the balance in favor of the government because the devices are so inexpensive that surveillance becomes too easy (4) and because the usual countermeasures one employs against government surveillance become worthless. (5) In a recent article in the Harvard Law Review, (6) Professor Orin Kerr claimed that "the basic dynamic of Fourth Amendment law resembles a zero-sum game," (7) arguing that the fundamental principle driving Fourth Amendment jurisprudence over the past hundred years has been the courts' desire to maintain an "equilibrium" between police power and civil liberties. (8)

In reality, however, the "competition" between law enforcement and criminals is not zero-sum. In order to see why, we need to see the criminal justice system not as a competition, but instead as an industry. In the decades since the beginning of the law and economics movement, (9) there has been surprisingly little application of economic principles to criminal procedure. (10) Richard Posner's foundational textbook Economic Analysis of the Law, for example, devotes only five of its 716 pages to criminal procedure. (11) Perhaps this is because criminal procedure, unlike tort law or contract law, deals with fundamental rights, which are less amenable to cost-benefit analysis. (12) But the mere fact that the Fourth Amendment protects fundamental rights does not mean that we cannot apply economic principles to evaluate it. Fourth Amendment law is about balancing privacy rights with the needs of law enforcement, and economic principles can inform that analysis.

Our goal in applying these economic principles to Fourth Amendment law is to increase the efficiency of the criminal justice system--that is, to maximize output while minimizing costs. This focus on efficiency does not mean that we are indifferent to the constitutional rights of our citizens. To the contrary, the potential infringement of these rights is one of the costs that we are seeking to minimize. Another cost, more easily measured, is the tangible monetary cost incurred by law enforcement organizations (and thus ultimately by society as a whole) to undertake a given type of surveillance. (13) The output that we are seeking is crime control, or more specifically in the Fourth Amendment context, the identification of those who are guilty of a crime and collection of evidence that can be used to demonstrate their guilt. (14) Roughly speaking, the more money we spend, or the more willing we are to infringe on our own freedoms, the more output we receive in terms of identifying the guilty and recovering incriminating evidence.

Once we apply economic analysis to this question, however, we can see that there are two reasons why Fourth Amendment doctrine could in fact be a positive-sum game. First, advances in technology can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens--that is, it is possible to increase the output without increasing the cost. (15) Second, changing norms and attitudes may decrease the value of certain kinds of privacy to individuals, causing the cost of certain types of surveillance to decrease. This can work in the other direction as well: When criminals, rather than police, take advantage of technological advances, the output of the system will decrease even if costs are held constant. Likewise, societal norms could change to make certain types of privacy more valuable, thus increasing the cost to the system. In these situations, the criminal justice system becomes a negative-sum game.

Another advantage of applying economic tools is that the application helps identify potential trade-offs in the system between different costs. For example, more money spent on training police could result in less infringement on constitutional rights while maintaining the same level of output (that is, the same level of gathering evidence and apprehension of criminals). More controversially, we may be able to maintain the same level of output by adopting newer types of surveillance that are less expensive but result in greater infringement on our privacy rights. It may well be that this latter trade-off is one that many people will never want to undertake, as even a savings of millions of dollars is not worth even a slight loss of privacy rights. But an economic analysis of the question at least makes that choice more transparent.

Once we have identified the productivity of different forms of surveillance, we can take steps to encourage more productive types of surveillance and discourage the less productive ones. This can be accomplished by adjusting the legal standard of suspicion that law enforcement is required to demonstrate before engaging in different methods of surveillance, from no suspicion at all, to reasonable suspicion, to probable cause, or to something even higher. If a certain surveillance method is very productive--that is, if it produces a high level of success with a low cost in terms of resources and infringements on our privacy--then we should encourage law enforcement agents to conduct the surveillance by removing any constitutional or statutory restrictions on the activity. And if a certain method of surveillance is particularly unproductive, we should require law enforcement agents to demonstrate a high level of suspicion--probable cause or greater--before being allowed to engage in that activity.

Part I of this Article will sketch out a basic formula for analyzing the productivity of different surveillance methods by measuring the cost of the inputs and the benefits of the outputs. Part II will apply this formula to different methods of surveillance to see how certain methods of surveillance are more productive than others, and will look for ways to increase the productivity of surveillance generally. The Article concludes by offering some suggestions for changing the way we regulate surveillance techniques to maximize the efficiency of the process.

  1. APPLYING ECONOMIC ANALYSIS TO FOURTH AMENDMENT DOCTRINE

    Until quite recently, scholars had done very little to apply economic principles to questions of criminal procedure. (16) Those that did tended to focus on the post-arrest aspects of criminal procedure--for example, how to regulate plea bargaining or prosecutorial discretion to produce an optimal result. (17) In 2003, Professor Craig Lerner provided the first serious attempt to apply economic principles to the Fourth Amendment when he proposed a formula for determining whether probable cause exists in a certain case. (18) Professor Lerner chose as his starting point the famous Learned Hand formula from tort law, which is used to calculate whether a party has been negligent. Under Hand's formula, a party is negligent if the burden, or cost, of taking precautions to prevent an accident (B) is less than the probability of the accident occurring (P) times the social loss of the accident (L). In mathematical terms, if B

    Professor Lerner adapts the formula and applies it to the probable cause context by proposing that a search would be reasonable if the social cost of the search in terms of the intrusion on privacy (C) is less than the social benefit (B) of the search multiplied by the probability of the search being successful (p). (20) In mathematical terms: If C

    Professor Lerner intentionally deviates from established Fourth Amendment doctrine in one very significant way: He considers both the likelihood of success of the surveillance and the severity of the crime being investigated as factors in determining whether probable cause exists. (23) In other words, the social benefit "B" in his formula is not a constant, but a variable--it will be higher if the police are investigating a rape or a murder, and lower if they are investigating a petty larceny or a simple assault. It will also be higher if the search is very likely to uncover evidence of a crime, and lower if it is a mere fishing expedition that has a small likelihood of producing useful...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT