Thursday, October 28, 2010

Crime Severity Distinctions and the Fourth Amendment

A new article by SMU Professor Jeffrey Bellin was highlighted on Good stuff and ideas.

In this article, Professor Bellin seeks to incorporate crime severity into Fourth Amendment doctrine. Others – as Professor Bellin mentions in the article – have posed theoretical objections to this suggestion. I'll leave that to the others for now, and instead highlight what Professor Bellin says about the application of traditional Fourth Amendment doctrines to emerging technology. He writes:

Traditional Fourth Amendment doctrine performs best when assessing venerable methods of search and seizure – a police officer stops a suspect on a street, pats down his clothes, looks through the suspect's pockets, searches his briefcase and, ultimately, searches his home for items specified in a warrant. These types of searches generally fall within the broad middle ground of a hypothetical invasiveness spectrum – they unambiguously intrude upon an individual's privacy (or mobility), but do so only partially, leaving much of the individual's privacy intact.

The next wave of controversial searches will differ from those traditionally encountered in two important ways. First, the degree of privacy invasion will increase exponentially. The partial privacy invasions of a physical search of a briefcase, car or even a home will appear quaint in comparison to the invasions that can be accomplished with modern technologies. Second, modern technologies will simultaneously enable remarkably unintrusive techniques to gather much of the data that, traditionally, only a more intrusive search would reveal. These opposing facets of technologically-enhanced searches – searches that fall at either extreme of the invasiveness spectrum – will increasingly present difficulties for courts applying traditional doctrine. Crime severity distinctions, while not the entire answer, provide a ready means of alleviating these difficulties.

I agree that traditional doctrines have posed challenges for the courts. Issues such as cell phone searches incident to arrest, warrantless GPS tracking of vehicles, and encryption have been highlighted on this blog.

I remain skeptical, however, that the crime severity analysis is likely to add much to the analysis of discrete searches performed on individual suspects. Instead, I have argued that courts should recognize the expectation of privacy in the contents of electronic devices as reasonable, and impose tighter limits on law enforcement's review of data without a warrant rather than simply applying outdated doctrines. (I have not argued for the limiting of traditional exceptions to the warrant requirement, such as exigent circumstances.)

My initial reaction to Professor Bellin's arguments is that this factor is more appropriately taken into account in evaluating the limits of privacy protections posed by broad scale surveillance and data gathering operations. I reserve the right to be convinced otherwise, however, or to change my mind as I ponder the argument a bit more

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