The effect of legislation on Fourth Amendment protection.

• Author: Kerr, Orin S.

ABSTRACT

When judges interpret the Fourth Amendment, and privacy legislation regulates the government's conduct, should the legislation have an effect on the Fourth Amendment? Courts are split three ways. Some courts argue that legislation provides the informed judgment of a coequal branch that should influence the Fourth Amendment. Some courts contend that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from interfering with the legislature's handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect.

This Article argues that courts should favor interpreting the Fourth Amendment independently of legislation. At first blush, linking the Fourth Amendment to legislation seems like a pragmatic way to harness the experience and skills of the legislature to help implement constitutional values. A closer look reveals a different picture. Investigative legislation offers a surprisingly weak indicator of constitutional values. Linking the Fourth Amendment and statutes raises novel and complex questions of what links to draw and how to draw them. Linkage also threatens to weaken statutory privacy laws by turning the legislative process into a proxy battle for Fourth Amendment protection. Interpreting the Fourth Amendment independently of legislation avoids these problems. Independence limits arbitrary decisionmaking, provides a clear standard, and helps to protect the benefits of legislation.

TABLE OF CONTENTS INTRODUCTION I. THE THREE APPROACHES: INFLUENCE, DISPLACEMENT, AND INDEPENDENCE A. Two Systems of Regulation B. The Influence Cases C. The Displacement Cases D. The Independence Cases E. The Three Approaches Outside Fourth Amendment Law II. AGAINST INFLUENCE: THE WEAK SIGNAL OF INVESTIGATIVE LEGISLATION A. The Distortion Problem B. The Federalism Problem C. The Necessity Problem III. FOR INDEPENDENCE: THE IMPLEMENTATION CHALLENGES OF INFLUENCE AND DISPLACEMENT A. The Challenges of Implementing Influence B. The Challenges of Implementing Displacement C. The Relative Ease of Implementing Independence IV. INDEPENDENCE PROTECTS THE TWO SYSTEMS OF SEARCH AND SEIZURE LAW A. The Benefits of a Dual System B. Influence and Displacement Limit Legislative Options C. Independence Prevents Executive Manipulation of Legislation CONCLUSION INTRODUCTION

The law of search and seizure has two primary sources. The best-known source is the Fourth Amendment to the United States Constitution. (1) A massive body of case law interprets the Fourth Amendment's ban on "unreasonable searches and seizures." (2) That case law imposes a complex code of criminal procedure regulating detention, physical searches, and many kinds of surveillance. (3) Because Fourth Amendment doctrine often uses open-ended phrases and considers a range of policy interests, there is often uncertainty about how the Fourth Amendment applies to new facts.

The second source of search and seizure law is what I will call investigative legislation. Investigative legislation includes any statute that limits government investigations. (4) Examples include wiretapping laws; (5) laws governing access to bank records; (6) hotel inspection ordinances; (7) laws on government use of automated license--plate readers; (8) laws regulating government use of drones; (9) statutes that regulate stops and frisks; (10) and legislation dictating when and how the police can make arrests. (11) Although investigative legislation receives far less scholarly attention than the Fourth Amendment, collectively it can amount to a parallel system of search and seizure law. (12)

This Article addresses a recurring question that has divided courts: Should investigative legislation influence judicial interpretations of the Fourth Amendment? (13) When courts apply the open-ended principles of the Fourth Amendment, and statutes regulate some aspect of the government's conduct, should the statutes help shape what the Fourth Amendment is interpreted to mean?

Existing cases offer three different answers to the question. I will label these answers influence, displacement, and independence. Courts applying the influence approach treat statutes as relevant benchmarks for constitutional meaning. (14) These courts view statutes as signals from a coequal branch of government that should influence, although not control, the Fourth Amendment. Courts that endorse the displacement approach treat statutory coverage as a reason to reject constitutional protection. (15) For these courts, investigative legislation should occupy the regulatory field and discourage judicial intervention to preserve thoughtful legislative protections. Finally, some courts adopt an independent approach and simply ignore investigative legislation when construing the Fourth Amendment. (16) These courts treat statutory protection as so different from the Fourth Amendment that it should have no influence on constitutional meaning.

Much of the case law on the three approaches has developed in the last five years, a trend owing in part to the recent enactment of more and stronger statutory privacy laws. Consider investigative legislation passed just in 2015. In that year, twenty states passed statutes limiting the legal use of drones. (17) Four states enacted laws limiting government access to automated license plate reader data. (18) At the federal level, Congress passed the USA Freedom Act to limit surveillance of telephone records by the National Security Agency. (19) The most populous state, California, enacted the most strict and far--reaching legislative regulation of government access to digitally stored evidence ever seen. (20) This and other recent legislative activity has helped inspire litigation on the significance of legislation to the Fourth Amendment.

This Article has two goals. The first goal is descriptive: It identifies and explains the three positions courts have taken on the proper role of investigative legislation in Fourth Amendment interpretation. It shows that all three positions--influence, displacement, and independence--have been embraced in Supreme Court opinions and in decisions by prominent appellate judges. Each of the three positions stems from plausible premises about the role and purposes of the Fourth Amendment. Further, each shares roots with established doctrines on the role of legislation in constitutional interpretation found outside the Fourth Amendment.

The Article's second goal is normative. It argues that courts should favor independence and should be wary of influence and displacement. The Fourth Amendment and investigative legislation create parallel systems of regulation. Influence and displacement try to link to the two systems by making the Fourth Amendment dependent (at least to some degree) on the state of investigative legislation. At first blush, this has considerable appeal. Under the influence approach, linkage can aid Fourth Amendment decisionmaking by learning from judgments of legislatures. And under the displacement approach, linkage can lead to more informed and nuanced privacy rules by deferring to legislatures that have institutional advantages over courts.

These arguments have surface appeal, but a closer look shows that they rest on dubious premises and ignore significant problems. The influence approach rests on the assumption that investigative legislation can shed light on societal values relevant to the Fourth Amendment. This assumption is quite weak, as determining the relevant societal message of investigative legislation turns out to be remarkably difficult if not impossible. Structural differences between the Fourth Amendment and investigative legislation make legislation a poor signal of constitutionally relevant judgments. And because investigative legislation is enacted in the shadow of the Fourth Amendment, its presence or absence tends to reflect the state of Fourth Amendment law rather than provide information about how it should be interpreted. What looks at first like a signal of societal values turns out to be mostly--if not entirely--noise.

Second, both influence and displacement would be surprisingly difficult to implement. Linking Fourth Amendment interpretation to the state of investigative legislation requires articulating standards for how this should be done. This proves very complicated because investigative legislation spans a series of interrelated regulatory choices by federal, state, and local legislatures. Courts would need to identify standards for what combinations of legislation trigger influence or displacement and what effect they should have once triggered. Developing such standards is not impossible. But nor is it easy, as it requires answering a series of novel questions that have no obvious answers. In contrast, implementing independence is simple. The difficult challenges of implementing influence and displacement provide a significant reason to favor independence.

The third argument for independence is that influence and displacement would undermine the benefits of a dual system of statutory and constitutional regulation. By linking constitutional standards to statutory law, influence and displacement would undermine the legislative process. Judicial linkage ex post would change the legislative incentives ex ante. The result would shrink legislative options, introduce considerable uncertainty, and give the executive significant incentive to object to investigative legislation because of its possible effect on Fourth Amendment interpretation. Having independent systems of constitutional and statutory regulation allows each to best advance the goals of search and seizure law in their spheres.

Importantly, the Article does not argue that courts must always embrace independence. Search and seizure law is famously fact specific, and it regulates an extraordinarily diverse range of facts using...