Babak Siavoshy, Fourth Amendment Regulation of Information Processing
Comment by: Stephen Henderson
Workshop draft abstract:
When (if ever) should the processing, analysis, or manipulation of evidence—rather than its mere collection—by the government trigger the Fourth Amendment? This essay addresses some of the difficult line-drawing problems that arise from this question.
The Fourth Amendment protects the people from unreasonable government searches and seizures of persons, houses, papers, and effects. Increasingly, however, government entities gather information not by rummaging through peoples’ things, but rather by using technology to process, analyze, or manipulate evidence or information that is already in the government’s hands or otherwise exposed. For instance, the government may uncover information about a person by analyzing DNA he “abandoned” on the sidewalk or a discarded coffee cup; it might learn what happens in his house by processing the heat signatures emanating from its walls; or it might learn his habits by stringing together the pattern of his “public” movement using thousands of data points from cameras, government weather satellites, or automatic license plate readers. In each of these cases, the physical form of what is collected—DNA, heat, or visual information exposed to the public—is either exposed or already in the government’s hands. It is the government’s use of technology to process, analyze, and enhance what is collected that makes the evidence useful, and that raises potential privacy concerns.
One response to these developments—perhaps representing the conventional wisdom—is that there are few, if any, constitutional limits on the government’s ability to manipulate evidence it could otherwise legally obtain. Advocates of this position correctly note that judicially imposed limitations on information processing create difficult line drawing problems (how do we distinguish between acceptable information processing and unacceptable information processing?) and risk tying the hands of law enforcement by arbitrarily restricting the use of technology in investigations. Accordingly, the conventional wisdom makes a strong argument that the government’s use of technology to manipulate, process, or analyze evidence—where there is no obvious collection problem—does not and should not trigger the Fourth Amendment.
This essay argues that the conventional wisdom on information processing under the Fourth Amendment is both misplaced and overstated. It is misplaced because it adopts a wooden construction and application of the Fourth Amendment (an otherwise flexible provision) and one that risks significantly undermining the Amendment’s effectiveness and purpose, particularly in light of advancements in technology that allow the government to get the information it wants without engaging in conduct that looks like a Fourth Amendment search or seizure. The conventional wisdom on information processing is also overstated, because it assumes that courts have hereto been unwilling to impose constitutional limitations on information processing conduct by the government. In fact, information the issue is not new to the courts. The judges and justices who shape Fourth Amendment law have grappled with what is essentially technologically-enhanced information processing conduct in cases as varied as Kyllo v. United States, Skinner v. Railway Executives Labor Association, Walter v. United States, United States v. Jones, and even Katz v. United States. An overview of these and other cases suggests, first, that courts are willing to impose Fourth Amendment limitations on some information-processing conduct—or at the very least, that courts acknowledge that such conduct raises a Fourth Amendment question. Second, it suggests a number of different solutions to the legitimate line drawing and other concerns raised by advocates of the view that information processing should not, by itself, trigger the Fourth Amendment. While there are no perfect solutions, the essay suggest a theoretical framework and a path forward for evaluating the Fourth Amendment implications of the increasing use of technologically-enhanced information processing by the government.