Privacy at Risk: The New Government Surveillance and the Fourth Amendment.

• Author: Kerr, Orin S.
• Position: Book review

PRIVACY AT RISK: THE NEW GOVERNMENT SURVEILLANCE AND THE FOURTH AMENDMENT. By Christopher Slobogin. Chicago and London: The University of Chicago Press. 2007. Pp. xi, 306. $37.50.

INTRODUCTION

Imagine the year is 2035. The election of Barack Obama in 2008 triggered a quarter century of Democratic Party dominance in American politics. Over time, Reagan and Bush appointees to the Supreme Court retired and were replaced by much more liberal successors. The new Supreme Court majority, led by Chief Justice Harold Koh, is now eager to make some waves. The Justices have set their eyes on the Fourth Amendment: They want to design a new Fourth Amendment that will match their civil libertarian privacy preferences. They aim to restore what they see as the Court's rightful place at the center of American privacy law, and they are looking for a method that combines some traditional principles with a new set of innovations.

In Privacy at Risk, Christopher Slobogin (1) proposes a new approach to the Fourth Amendment designed to appeal to such a Court. Slobogin argues that the government should have to justify all types of surveillance with at least some sort of cause. In particular, the Constitution should require the government to justify all investigatory tactics with a sufficient basis to think the tactic will work in light of its perceived intrusiveness. Slobogin calls this the proportionality principle: The more the public views a particular technique as intrusive, the more proof the government must have that the technique will actually yield evidence in order to justify its use in a particular case. Privacy at Risk specifically targets two surveillance techniques currently unregulated by the Fourth Amendment: public surveillance, such as closed circuit TV ("CCTV"); and transactional surveillance, such as access to bank, telephone, and other business records. Slobogin explains that under his new approach, public and transactional surveillance would be subject to considerable constitutional regulation. Slobogin then applies his framework to both techniques and proposes a complex set of Fourth Amendment rules for each.

Should the liberal Supreme Court of 2035 adopt Slobogin's proposal? And more broadly, does Slobogin's approach offer a conceptual improvement over the Fourth Amendment we have now? In my view, the answer is "no." Slobogin provides an interesting thought experiment, but I think his approach suffers from two significant flaws. First, his method does not accurately weigh the interests it claims to weigh. Although Slobogin presents his approach as an effort to balance privacy and security interests, neither public perceptions of intrusiveness nor the likelihood that a tactic will yield evidence accurately measures those interests. As a result, the proportionality principle that seems unobjectionable in theory turns out to be rather artificial in application. Second, Slobogin's results could be reached more easily in other ways. Slobogin's method is surprisingly complicated. In many cases, it requires courts to master the intricacies of public opinion surveys to determine public perceptions of intrusiveness. It also requires courts to generate a complex set of Fourth Amendment rules to govern different surveillance practices.

For these reasons, Slobogin's book raises interesting questions but fails to provide useful tools to guide a future rejuvenation of the Fourth Amendment. If a future Supreme Court wants to reconsider privacy rules to extend protection beyond current law, it can find approaches that are more direct and less cumbersome than the one Slobogin has offered.

1. A NEW FOURTH AMENDMENT?

   1. Overview

      Slobogin's book offers a new conceptualization of the Fourth Amendment rooted in what he calls the proportionality principle: An investigative technique should be permitted under the Constitution only if the strength of the government's justification for the technique is roughly proportionate to the level of intrusion it causes (p. 21). Slobogin roots this principle in Terry v. Ohio (2) and its pragmatic balancing of law-enforcement and privacy interests. To determine how much justification the Fourth Amendment requires, Slobogin argues, courts should assess the intrusiveness of the investigatory technique and then set a proportionate threshold of proof that the government must show (p. 17). The more intrusive the technique, the higher must be the degree of ex ante certainty established before the technique can be used. Moderately intrusive steps might be permitted with a court order merely establishing relevance, while more intrusive steps might be allowed only with probable cause. This case-by-case balancing of interests should replace the bifurcated design of existing Fourth Amendment law that leaves some practices entirely unregulated by the Fourth Amendment and then requires warrants based on probable cause for others (pp. 205-14).

      The notion of intrusiveness is central to Slobogin's proposed reworking of the Fourth Amendment. Slobogin does not define the term, but he argues that intrusiveness should be based heavily on public opinion: Courts should measure intrusiveness based on what the citizenry believes is intrusive (pp. 32-33). Slobogin then suggests two ways for courts to assess societal attitudes toward intrusiveness. First, courts should look to positive law such as property, contract, and tort doctrine for "clues as to what we think is private" (p. 33). When "positive law is ambiguous or does not [directly] address a particular situation," courts should next turn to surveys and public opinion surveys (p. 33). If public opinion surveys reveal that the public sees a technique as intrusive, then courts should require the government to establish ex ante a high degree of probability (such as probable cause) before permitting investigators to conduct that step. (3) In some cases the government would need a court order from a judge; in other cases the government would need the appropriate cause but no court order would be required.

      Slobogin's reconceptualization would also restructure Fourth Amendment remedies. Slobogin falls short of flatly rejecting the exclusionary rule, but he argues that a system of civil damages should become the leading remedy for Fourth Amendment violations (p. 216). Because the exclusionary rule ensures that Fourth Amendment issues arise with mostly guilty defendants, judges are more likely to construe the Fourth Amendment narrowly to keep guilty defendants in jail. In contrast, a strong system of civil damages would encourage judges to construe the Fourth Amendment in an appropriately broad way that reflects the real societal costs of pro-government rulings (p. 215). Slobogin suggests a range of reforms to encourage Fourth Amendment civil suits, including liquidated damages, rules against indemnification for reckless violations, and free lawyers for plaintiffs (p. 215).

      With this conceptual framework in place, Slobogin applies it to two types of surveillance to build the case for greater legal regulation of those practices. He first considers public surveillance and, in particular, the use of CCTV cameras in public areas. He then considers transactional surveillance such as government access to account records for telephones, banks, and credit cards.

   2. Public Surveillance

      Existing law offers few if any restrictions on public surveillance such as CCTV. The Fourth Amendment does not apply to surveillance in public, and legislatures have not enacted any meaningful regulation of such surveillance (pp. 89-90). This is misguided, Slobogin contends. Courts should recognize a constitutional right to public anonymity because lack of public anonymity "promotes conformity and an oppressive society" (p. 92). Governmental power to watch us in public can chill our speech, discourage our free spiritedness, and infringe upon our capacity for self-definition (pp. 90-108).

      Slobogin then applies his proposed framework to make the case for significant Fourth Amendment regulation of public surveillance. He first looks to positive law to establish the intrusiveness of public surveillance in general and CCTV in particular. Slobogin concludes that the absence of existing legal regulation "probably says little" about public assessments of intrusiveness (p. 109). The difficulty is that "[n]o entity other than the government engages in concerted, overt surveillance of the public streets using cameras" (p. 109). The lack of legal regulation probably just reflects the fact that such surveillance is rare and has not triggered public outcry. As a result, positive law cannot provide a source for measuring the intrusiveness of public surveillance.

      Slobogin next reports on public assessments of intrusiveness by presenting results of a survey he conducted for his book. In the survey, 190 people called for jury duty in Gainesville, Florida were asked to imagine that the government was conducting an investigation of a person who was actually innocent. They were then asked to rate the intrusiveness of a range of different types of investigative techniques used to investigate that innocent person and rank the intrusiveness on a scale from 1 (least intrusive) to 100 (most intrusive) (p. 111). Slobogin took twenty of the twenty-five most relevant scenarios and ranked the different techniques based on their average intrusiveness as reported by the survey participants.

      Here is the average intrusiveness of the different techniques, ranked from the least intrusive to the most, with their associated confidence intervals (p. 112):

      FIGURE I PUBLIC SURVEILLANCE 1 Looking in foliage in park 8 +/-4 2 Conducting health and safety 14 +/-4 inspection of factory 3 Monitoring cameras at national 20 +/-7 monuments 4 Monitoring cameras at government 20 +/-7 buildings, airports...