Fourth Amendment Fairness

By Re, Richard M. | Michigan Law Review, June 2018 | Go to article overview

Fourth Amendment Fairness


Re, Richard M., Michigan Law Review


Introduction

Does the Fourth Amendment have a first principle?1 Consider the following scenario, which is inspired by real events:

To detect, deter, and prosecute terrorists, the federal government develops a surveillance program that uses cell-site location records to monitor the public movements of almost everyone in major cities.2 A computer program then mines the resulting population data to identify suspects for additional police investigation.3 The program considers whether people are of Arab descent, treating that factor as a reason for carrying out extra investigation.4

This scenario raises many interconnected Fourth Amendment issues. The government is pursuing an important antiterrorism interest. It is using an algorithm to draw inferences from a large amount of arguably nonprivate information. And it is drawing racial categorizations. Competing concerns include security, privacy, and equality. What principle can fairly balance these interests and thereby disclose whether the scenario involves "unreasonable searches and seizures"?5 What does it mean to say that something is constitutionally "unreasonable," anyway?6 Scholarship and case law suggest three types of answer.

The first way to give meaning to "unreasonable searches and seizures" involves recourse to history. The Supreme Court has said that the Fourth Amendment secures, "at a minimum," those rights protected by law at the founding.7 The meaning of "unreasonable searches and seizures" is thus partly frozen in time. But that ostensibly historical approach is itself historically dubious. In using open-ended language and referring to the ever-evolving common law notion of reasonableness, the Fourth Amendment established a broad principle, rather than codifying any fixed set or version of eighteenth-century doctrines.8 Moreover, it is hard to credit the idea that founding-era law alone could answer the challenges posed by new social and technological circumstances. In the face of new challenges, the only feasible approach is to extract a principle from the Fourth Amendment and reason based on it. The Court itself has recognized as much in framing history as establishing only a "minimum" level of protection-not a maximum.9 And in several cases involving new technologies, even the Court's originalist jurists have joined opinions that endeavored to reason about reasonableness.10 In short, recourse to history only defers the hard, unavoidable question of just what makes a search or seizure "unreasonable."

The second way to identify unreasonable searches and seizures is to engage in some form of interest aggregation. Alas, the Court is not rigorous or consistent in its use of interest aggregation. For instance, the Court is unclear what interests count or how they are to be compared. As a result, commentators have variously glossed this aspect of the Court's methodology as a crude form of utilitarianism or cost-benefit analysis.11 For present purposes, however, the key is that the Court is often prepared to ascertain unreasonableness by adding up benefits and costs and choosing the legal option that is most likely to maximize overall welfare. For example, the Court routinely rejects proposed Fourth Amendment rules because they would generate costly litigation.12 These decisions assume that the propriety of searches and seizures can be assessed based on the aggregate costs and benefits to society at large.

Interest aggregation is problematic for several reasons. First, it conflicts with widely held intuitions about the nature of Fourth Amendment rights. For an interest aggregator, individual rights must sometimes be set aside for the sake of social welfare. But the Fourth Amendment is often thought to protect individuals from unfair burdens, even when those burdens are net beneficial to society at large. Second, Fourth Amendment doctrine is characterized by principles, like the individualized suspicion requirement, that are in tension with interest aggregation and seem instead to have a deontological foundation. …

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