The Fourth Amendment as administrative governance.

• Author: Renan, Daphna
• Position: Introduction through III. Administration "Inside" Constitutional Criminal Procedure A. Administrative Law as an Analogy for Fourth Amendment Law 2. Deference as a Governance Tool, p. 1039-1085

Table of Contents Introduction I. Governance as a Fourth Amendment Problem A. The Transactional Fourth Amendment B. The Inadequacy of a Transactional Fourth Amendment Jurisprudence 1. Aggregation 2. Silos 3. Spillovers II. The "Interlocking Gears" of Fourth Amendment and Administrative Law A. Beyond Warrants B. Statutory Surrogates and the Inevitability of Delegation C. The Promise of a More Integrated Framework III. Administration "Inside" Constitutional Criminal Procedure A. Administrative Law as an Analogy for Fourth Amendment Law 1. Structural and systemic dimensions of reasonableness 2. Deference as a governance tool 3. Limits to judicial deference under the Fourth Amendment B. Shaping Governance Through Evidentiary Exclusion IV. Administrative Law as a Complement to Constitutional Criminal Procedure. A. Administrative Law's Potential 1. Aggregation 2. Silos and spillovers 3. Administrative law's absence B. Lessons from (and for) the FISC V. Institutionalizing the Fourth Amendment Through Agency Design A. Judicial Reluctance to Review Programmatic Efficacy B. Administrative Efficacy Review 1. Structuring programmatic efficacy review 2. Decentering executive oversight from the President 3. The Privacy and Civil Liberties Oversight Board as a systemic regulator of efficacy 4. Distinguishing efficacy review from compliance 5. Dynamic governance and judicial review C. Designers and Politics Conclusion: Administrative Methods for Constitutional Governance Introduction

In the Supreme Court's recent landmark decision regarding the search of a cell phone seized incident to arrest, the Chief Justice exclaimed with apparent exasperation that "[t]he Founders did not fight a revolution to gain the right to government agency protocols." (1) In holding that the Fourth Amendment requires a warrant to authorize the search, (2) the Court dug into the realities of digital data and the expansive, intrusive window that such data--which most of us carry around in our pockets--afford the government. But even as it wrestled with the implications of the digital medium, the Court clung to a conception of the search power that has long shaped Fourth Amendment jurisprudence. That conception is transactional: it focuses on a discrete law enforcement-citizen encounter and the question whether that one-off interaction is constitutionally reasonable.

Yet the exercise of the contemporary search power often bears little resemblance to that one-off encounter. What we have are programs of surveillance, grounded in underspecified legal mandates and implemented through an ecosystem of interacting agency protocols. Those administrative policies decide, in practice, the scope and bounds of the power to search. This may not be the Framers' vision, but it is increasingly what search and seizure looks like on the ground. Our traditional Fourth Amendment framework does not know what to do with agency protocols and the programs of surveillance they bring to life.

Recent revelations about the surveillance activities of the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI) are illustrative. The NSA collects the content of hundreds of millions of communications (things such as e-mail and telephone conversations) annually under section 702 of the Foreign Intelligence Surveillance Act (FISA). (3) Extensive and interacting administrative rules from four different agencies determine the effective scope of the section 702 program. NSA rules decide, for example, whether the government can collect communications that are "about" a foreign intelligence target, rather than between that target and another individual. FBI rules decide whether the FBI can search the resulting section 702 datasets for the communications of a specific U.S. person or in the course of ordinary criminal investigatory activity. (4)

Programmatic surveillance is not limited to the intelligence space. It is a daily feature of contemporary law enforcement. The FBI, for instance, plays a central role in linking, aggregating, and funding DNA sampling by federal, state, and local law enforcement. The FBI's database has over fifteen million DNA samples taken from convicted offenders and arrestees nationwide and used to develop investigatory leads every day across jurisdictions. Interacting agency protocols from different levels of government decide how the DNA samples will be used and searched; when information about sampled individuals will be shared; and what safeguards exist on DNA testing, sharing, retention, and use. Administrative policies decide whether law enforcement may use DNA taken from a sampled individual (such as an arrestee) to investigate that sampled individual's family members--a controversial investigatory practice known as "familial searching"--and whether any resulting lead can be shared with another law enforcement agency. (5)

While our Fourth Amendment framework is transactional, then, surveillance is increasingly programmatic. Rather than responding to a single investigatory incident, the system of searches is designed en masse. (6) Surveillance is ongoing, and the implications for Fourth Amendment values such as privacy are cumulative. Technology has made it easier than ever to collect, combine, share, and retain massive amounts of data and to search the resulting datasets. (7) The parameters of these surveillance programs--what individuated searches can be run in the datasets, for what purposes, and pursuant to what limitations or protections--are designed through administrative policies.

Programmatic surveillance disrupts the legal categorizations around which our transactional Fourth Amendment law is organized. Generalized collection gives rise to individualized searches in interwoven datasets, unsettling an important distinction between individualized and suspicion-less searches. Foreign intelligence gathering by the NSA, as in the section 702 program, gives rise to criminal investigatory uses by domestic law enforcement agencies, disintegrating a longstanding divide between domestic surveillance and foreign intelligence. (8) And a search of one individual implicates the privacy interests of others not subject to that initial intrusion, such as the family members who share an arrestee's biological markers and might, in turn, be investigated through her sampled DNA. (9)

The puzzle, then, is not how to craft Fourth Amendment protections impervious to administration. It is just the opposite: How do we better integrate administrative governance with the law and theory of the Fourth Amendment? Recasting problems of surveillance as problems of governance crystallizes the limits of the traditional, transactional approach to Fourth Amendment law. A core challenge is to make administration meaningful to the Fourth Amendment. Put differently, the Fourth Amendment has stumbled upon administrative law.

A central goal of the Fourth Amendment is to curb the arbitrary exercise of the executive's search and seizure power to protect values often clustered around an idea of privacy. (10) Scholars and jurists today debate the capacity of courts and constitutional criminal procedure to achieve this goal. The idea that legislation provides a preferable alternative to robust Fourth Amendment protections is gaining traction. (11) One approach, then, might be to regard surveillance governance as a project outside of the Fourth Amendment entirely. This Article resists the trend to view legislation as an effective substitute for Fourth Amendment regulation. It argues instead for a conception of the Fourth Amendment enriched by the interaction among the branches. In this sense, my thesis is of a piece with those scholars arguing for a more "collaborative" approach to Fourth Amendment elaboration in the digital age. (12)

The Article contributes to that project by bringing sustained focus to a third cluster of institutions--the administrative state. Fourth Amendment theory tends to focus on local policing. Yet surveillance governance increasingly has a national locus as well. This is in part because of the sweeping surveillance activity in which the federal executive today engages. It is also because of the role that the federal executive increasingly plays in aggregating, linking, and funding surveillance by state and local law enforcement. The federal administrative state, then, is not simply a powerful analogy. It is an inescapable part of the story.

At a conceptual level, the Article develops this central claim: the Fourth Amendment's requirement of reasonableness in search is rarely a litmus test applicable to an isolated incident. Instead, Fourth Amendment reasonableness should set standards for a system of governance. Constitutional reasonableness is at least in part about the interdependent processes that regularize, constrain, and make accountable the ongoing exercise of surveillance power.

The Article provides a framework to address surveillance at the level of governance. I begin with Fourth Amendment law itself and argue that the doctrines of constitutional criminal procedure can be made more attentive to how the search power is today institutionalized. Administrative law, as an analogy, suggests an approach to the court-agency relationship that can be integrated into constitutional reasonableness review under the Fourth Amendment. Courts also can use the core implementing device of constitutional criminal procedure--the exclusionary rule--to create incentives for more systemic extrajudicial oversight. (13)

Second, we can use administrative law as law. When surveillance has a national nexus, federal framework statutes like the Administrative Procedure Act (APA)--and, I will argue, FISA--supply a complementary mechanism for courts to regulate Fourth Amendment activity at the level of program design and policymaking. (14) The Fourth Amendment's primary point of entry is the warrant requirement (when it applies) on the front end and...