The Forgotten Right "to Be Secure"

Surveillance methods in the United States operate under the general principle that “use precedes regulation.” While the general principle of “use precedes regulation” is widely understood, its societal costs have yet to be fully realized. In the period between “initial use” and “regulation,” government actors can utilize harmful investigative techniques with relative impunity. Assuming a given technique is ultimately subjected to regulation, its preregulation uses are practically exempted from any such regulation due to qualified immunity (for the actor and municipality) and the exclusionary rule’s good faith exception (for any resulting evidence). This expectation of impunity invites strategic government actors to make frequent and arbitrary uses of harmful investigative techniques during preregulation periods. Regulatory delays tend to run long (often a decade or more) and are attributable in no small part to the stalling methods of law enforcement (through assertions of privilege, deceptive funding requests, and strategic sequencing of criminal investigations). While the societal costs of regulatory delay are high, rising, and difficult to control, the conventional efforts to shorten regulatory delays (through expedited legislation and broader rules of Article III standing) have proved ineffective. This Article introduces an alternative method to control the costs of regulatory delay: locating rights to be “protected” and “free from fear” in the “to be secure” text of the Fourth Amendment. Courts and most commentators interpret the Fourth Amendment to safeguard a mere right to be “spared” unreasonable searches and seizures. A study of the “to be secure” text, however, suggests that the Amendment can be read more broadly: to guarantee a right to be “protected” against unreasonable searches and seizures, and possibly a right to be “free from fear” against such government action. Support for these broad readings of “to be secure” is found in the original meaning of “secure,” the Amendment’s structure, and founding-era discourse regarding searches and seizures. The rights to be “protected” and “free from fear” can be adequately safeguarded by a judicially-created rule against government “adoption” of an investigative method that constitutes an unregulated and unreasonable search or seizure. The upshot of this Fourth Amendment rule against “adoption” is earlier standing to challenge the constitutionality of concealed investigative techniques. Earlier access to courts invites earlier j

Congressional End-Run: The Ignored Constraint on Judicial Review

This Article identifies an untended connection betweenthe research of legal academics and political scientists. Itexplains how recent developments in constitutional theory,when read in good light, expose a gap in the judicialpolitics literature on Supreme Court decision making. Thegap is the congressional end-run. End-runs occur when Congress mitigates the policy costof adverse judicial review through neither formal limits onthe Court\u27s autonomy nor substitution of its constitutional interpretationfor that of the Court, but through a differentdecision which cannot, as a practical if not legal matter,be invalidated by the Court. End-runs come in severalforms, including congressional decisions to grantauthority to the Executive Branch, to adjustappropriations,to modify certain contingent laws, and toreorient legislation in alternate constitutional clauses.Ignored by political scientists, end-runs undoubtedlyconstrain the judicial decision making of the strategicJustices assumed by judicial politics scholars.This Article calls on judicial politics scholars toincorporate the end-run into their formal SOP models andrelated empirical studies. Such incorporation promises togive political scientists a fuller sense of how their strategicJustices interact with Congress in our constitutionaldemocracy

The Real Rules of Search Interpretations

The Supreme Court tells us that a Fourth Amendment “search” is a matter of “reasonable expectations of privacy.” Scholars meanwhile debate “search” on the axes of value, doctrine, institutionalism, interpretation, and judicial politics. Yet neither prevailing judicial doctrine nor normative academic discourse has had much impact on the Court’s actual “search” interpretations. This article suggests that this static between “paper” rules and “real” rules (and, more generally, normative prescriptions and judicial decisionmaking) is a function of a deep constraint on the judiciary’s capacity to form “search” doctrine in free accordance with evolving juridical and policy norms. This constraint is one that I call the “atomic code.” The atomic code has three properties. First, justices evaluate each “search” issue without regard for coherence across the spectrum of “search” issues. In effect, the “search doctrine” is simply an “aggregation of search ‘atoms.’” A second property of the atomic code is that justices attribute content to new search atoms through analogies to old search atoms. While initially every search atom is dormant, over time a justice, either informally or through adjudication, will gradually attribute content—“search” or “non-search”—to her atoms by drawing from the content of analogous search atoms. By this account, the holding in Olmstead v. United States reflects nothing grander than the endorsement by five justices of an analogy between wiretapping and visual surveillance from a public vantage point. The third property of the atomic code is that a justice will not reassess an atom’s content once she has made her initial attribution. One might think of this as stare decisis writ small: a justice (but not necessarily the Court) will decide like cases alike. And so the overturning of “search” precedent is not the result of a majority’s new attribution of content to their search atoms, but, more accurately, a new majority of initial attributions. I should emphasize at the outset that the atomic code is not simply the result of a vague doctrinal test, suboptimal or inaccessible empirical data on “privacy expectations,” or judicial politics. Rather, the code’s roots run deeper. It is in large part attributable to two factors. One is the concreteness of the term “search.” The other is the justices’ preference for a calibrated retroactivity of criminal procedure rules. These two factors, more than any others, have caused justices to treat the “search” doctrine as atomistic, to attribute content through analogical reasoning, and to fix content upon attribution

Brief of Scholars of the History and Original Meaning of the Fourth Amendment as Amici Curiae in Support of Petitioner, Carpenter v. United States, No. 16-402 (U.S. Aug. 14, 2017)

Obtaining and examining cell site location records to find a person is a “search” in any normal sense of the word — a search of documents and a search for a person and her personal effects. It is therefore a “search” within the meaning of the Fourth Amendment in that it constitutes “examining,” “exploring,” “looking through,” “inquiring,” “seeking,” or “trying to find.” Nothing about the text of the Fourth Amendment, or the historical backdrop against which it was adopted, suggests that “search” should be construed more narrowly as, for example, intrusions upon subjectively manifested expectations of privacy that society is prepared to recognize as reasonable.Entrusting government agents with unfettered discretion to conduct searches using cell site location information undermines Fourth Amendment rights. The Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches.” The Framers chose that language deliberately. It reflected the insecurity they suffered at the hands of “writs of assistance,” a form of general warrant that granted state agents broad discretion to search wherever they pleased. Such arbitrary power was “unreasonable” to the Framers, being “against the reason of the common law,” and it was intolerable because of its oppressive impact on “the people” as a whole. As emphasized in one of the seminal English cases that inspired the Amendment, this kind of general power to search was “totally subversive of the liberty of the subject.” James Otis’s famous speech denouncing a colonial writ of assistance similarly condemned those writs as “the worst instrument of arbitrary power,” placing “the liberty of every man in the hands of every petty officer.” Thus, although those who drafted and ratified the Fourth Amendment could not have anticipated cellphone technology, they would have recognized the dangers inherent in any state claim of unlimited authority to conduct searches for evidence of criminal activity. Cell site location information provides insight into where we go and what we do. Because this information is constantly generated and can be retrieved by the government long after the activities it memorializes have taken place, unfettered government access to cell site location information raises the specter of general searches and undermines the security of “the people.

Developing an Individual-level Geodemographic Classification

Geodemographics is a spatially explicit classification of socio-economic data, which can be used to describe and analyse individuals by where they live. Geodemographic information is used by the public sector for planning and resource allocation but it also has considerable use within commercial sector applications. Early geodemographic systems, such as the UK’s ACORN (A Classification of Residential Neighbourhoods), used only area-based census data, but more recent systems have added supplementary layers of information, e.g. credit details and survey data, to provide better discrimination between classes. Although much more data has now become available, geodemographic systems are still fundamentally built from area-based census information. This is partly because privacy laws require release of census data at an aggregate level but mostly because much of the research remains proprietary. Household level classifications do exist but they are often based on regressions between area and household data sets. This paper presents a different approach for creating a geodemographic classification at the individual level using only census data. A generic framework is presented, which classifies data from the UK Census Small Area Microdata and then allocates the resulting clusters to a synthetic population created via microsimulation. The framework is then applied to the creation of an individual-based system for the city of Leeds, demonstrated using data from the 2001 census, and is further validated using individual and household survey data from the British Household Panel Survey