David C. Gray (University of Maryland Francis King Carey School of Law) has posted A Collective Right to Be Secure from Unreasonable Tracking (48 Tex. Tech. L. Rev. 189 (2015)) on SSRN. Here is the abstract:
In 1983, the Supreme Court confronted the question whether police tracking of a suspect’s movements through public space using a radio beeper tracking device constituted a search under the Fourth Amendment. Without dissent, the Court in United States v. Knotts applied the third party doctrine to hold that it did not. In that case, Knotts argued that leaving the use of beeper tracking technology to the unfettered discretion of government agents would license broad and indiscriminate surveillance policies capable of “twenty-four hour surveillance of any citizen . . . without judicial knowledge or supervision.” The Court declined to address what was then mere hypothesis, reserving for a later time the question “whether different constitutional principles may be applicable” should “such dragnet-type law enforcement practices as respondent envisions . . . eventually occur.”
Although the technical and practical limitations of the beeper tracking technology at issue in Knotts made it unsuitable as a tool for mass surveillance, newer technologies have no such limitations. As examples, tracking with the assistance of GPS-enabled devices — whether those devices are planted by law enforcement or are native to our personal technologies — cell-site location, radio frequency identification device (RFID) tags, and the increasingly dense archipelago of surveillance cameras — many of which are linked through computer networks and monitored using a variety of algorithms — have overcome the limits of cost, scale, and human labor that allowed most of us, most of the time, to be secure in the belief that we were not being tracked by radio beepers. In short, the day forestalled by the Court in Knotts has come.
This essay, which is part of Texas Tech's annual Criminal Law Symposium, argues that contemporary tracking technologies threaten the collective security of the people from unreasonable searches. Some form of Fourth Amendment regulation therefore is necessary. As Danielle Citron and I have argued elsewhere, the best way to provide for the security of the people in the face of these threats is to focus on the technologies themselves. Under this technology-centered approach, courts, legislatures, and executive agents would assess the potential of tracking technologies to facilitate programs of broad and indiscriminate surveillance characteristic of a surveillance state. They would then develop and enforce regulatory frameworks sufficient to restore the security of the people by imposing prospective constraints on the deployment and use of tracking technologies with the goal of guaranteeing that most of us, most of the time, are not subject to government tracking.
