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smart surveillance

Over the last decade, law enforcement agencies have engaged in increasingly intrusive
surveillance methods, from location tracking on cell phones to reading metadata off of
e-mails. As a result, many believe we are heading towards an omniscient surveillance
state and irrevocable damage to our privacy rights. In Smart Surveillance, Ric Simmons
challenges this conventional wisdom by taking a broader look at the effect of new
technologies and privacy, arguing that advances in technology can enhance our privacy
and our security at the same time. Rather than focusing exclusively on the rise of invasive
surveillance technologies, Simmons proposes a fundamentally new method of evaluating
government searches – based on quantification, transparency, and efficiency – resulting
in a legal regime that can adapt as technology and society change.

ric simmons is the Chief Justice Thomas J. Moyer Professor for the Administration of
Justice and Rule of Law at the Moritz College of Law at The Ohio State University. He is
the coauthor of four textbooks on evidence and criminal procedure, and he has pub-
lished over two dozen scholarly articles in law journals. His scholarship focuses on the
Fourth Amendment and how courts and legislatures should react to the impact of new
technologies in regulating surveillance.
Smart Surveillance
how to interpret the fourth amendment in
the twenty-first century

RIC SIMMONS
Ohio State University Moritz College of Law
University Printing House, Cambridge cb2 8bs, United Kingdom
One Liberty Plaza, 20th Floor, New York, ny 10006, USA
477 Williamstown Road, Port Melbourne, vic 3207, Australia
314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India
79 Anson Road, #06–04/06, Singapore 079906

Cambridge University Press is part of the University of Cambridge.


It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781108483605
doi: 10.1017/9781108692939
© Ric Simmons 2019
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2019
Printed in the United Kingdom by TJ International Ltd. Padstow Cornwall
A catalogue record for this publication is available from the British Library.
isbn 978-1-108-48360-5 Hardback
isbn 978-1-108-72896-6 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Contents

Acknowledgments page vii

Introduction: The Myth of the Surveillance Panopticon 1

1 The Cost–Benefit Analysis Theory 14

2 Measuring the Benefits of Surveillance 36

3 Quantifying Criminal Procedure 65

4 Reactive Surveillance 84

5 Binary Searches and the Potential for 100 Percent Enforcement 102

6 Public Surveillance, Big Data, and Mosaic Searches 119

7 The Third-Party Doctrine Dilemma and the Outsourcing of


Our Fourth Amendment Rights 141

8 Hyper-Intrusive Searches 162

Conclusion: Implementing the Change 183

Notes 191
Index 261
Acknowledgments

For their feedback on earlier incarnations of this work, I would like to thank Kiel
Brennan-Marquez, Carin Ciano, Bryan Choi, Peggy Davis, Kris Franklin, David
Gray, Mike Hintze, Dennis Hirsch, Renée Hutchins, Mary Leary, Rebecca Lipman,
Michael Mannheimer, Lawrence Rosenthal, Laurent A. Sacharoff, Andrew Selbst,
Christopher Slobogin, Stephen Smith, and Natalie Venatta. I also want to thank the
participants in the 2012 South East American Law School Conference, the 2016
Privacy Law Scholars Conference, the 2017 Big Data and Criminal Law Round-
table, and the 2018 CrimFest conference. Further thanks to Daniel Colston Court-
ney Cook, Justine Daniels, Erin Hassett, Joe Jakubowski, Kelsey Kornblut, Paige
Weinstein, and Amanda Wood for their research assistance. Above all, and as always,
thanks to Angie Lloyd for constant support and invaluable feedback.
Portions of the following articles appear in substantially reworked form in this
book: From Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment to
Twenty-First Century Technologies, 53 Hastings L.J. 1303 (2002); Can Winston
Save Us from Big Brother? The Need for Judicial Consistency in Regulating Hyper-
Intrusive Searches, 55 Rutgers L. Rev. 547 (2003); Technology-Enhanced Surveil-
lance by Law Enforcement Officials, 60 N. Y. U. Ann. Surv. Am. L. 711 (2005);
Why 2007 Is Not Like 1984: A Broader Perspective on Technology’s Effect on Privacy
and Fourth Amendment Jurisprudence, 97 J. L. & Criminology 531 (2007);
Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amend-
ment, 36 Harv. J. L. & Pub. Pol’y 549 (2013); Quantifying Criminal Procedure:
How to Unlock the Potential of Big Data in Our Criminal Justice System, 2016
Mich. St. L. Rev. 947 (2016).

vii
Introduction

The Myth of the Surveillance Panopticon

The telescreen received and transmitted simultaneously. Any sound that Winston made,
above the level of a very low whisper, would be picked up by it; moreover, so long as he
remained within the field of vision which the metal plaque commanded, he could be seen as
well as heard. There was of course no way of knowing whether you were being watched at any
given moment. How often, or on what system, the Thought Police plugged in on any
individual wire was guesswork. It was even conceivable that they watched everybody all the
time. But at any rate they could plug in your wire whenever they wanted to. You had to live –
did live, from habit that became instinct – in the assumption that every sound you made was
overheard, and, except in darkness, every movement scrutinized.1
George Orwell, 1984

George Orwell’s chilling vision of the future showed how a totalitarian state could
use new technologies to destroy privacy and freedom. Orwell wrote the novel in
1948,2 when computers filled entire rooms, processing data at a snail’s pace. Televi-
sion was in its infancy, and devices like thermal imagers and particle detectors
existed only in science fiction.3 At the dawn of this technological revolution, Orwell
presented a clear message: new technologies would allow the state to dramatically
increase its power over the individual, enabling totalitarian states to control every
aspect of its citizens’ lives.4
Many people today have come to believe that our world is starting to resemble
Orwell’s dystopia. They read about law enforcement agents using powerful new
surveillance technologies and react with trepidation.5 Over the last century, the
government has tapped our phones;6 installed video cameras and hidden micro-
phones in our offices, homes, and hotel rooms;7 intercepted our e-mails;8 scanned
crowds for images of our faces;9 monitored our web browsing;10 seized and copied
our hard drives;11 and even looked through the walls of our houses.12 The National
Security Agency runs secret programs using third party companies that collect our e-
mails, browsing history, telephone calls, social media, and stored data. Law

1
2 The Myth of the Surveillance Panopticon

enforcement agencies use devices known colloquially as “Stingrays” which can


mimic cell phone towers and intercept our telephone calls.13 Video cameras watch
us from fixed locations throughout the city, satellites monitor us from space, and
soon drones will fill the skies to monitor our movements.
Politicians,14 judges,15 Fourth Amendment scholars,16 and lay people17 from
across the political spectrum have reacted with anxiety and alarm, calling for greater
regulation from courts or legislatures to protect our privacy rights. The message is
nearly unanimous: modern technology poses a grave threat to our privacy, and we
must act quickly to reign in the overbearing surveillance state.
This book challenges the conventional wisdom and argues that new surveillance
technologies are perfectly compatible with strong privacy protections. To achieve
this compatibility, modern surveillance techniques require different methods of
evaluation and regulation based on a new paradigm that measures the efficiency
of the new technology and then compares the efficiency with existing surveillance
techniques. Under this new paradigm, we will find many contexts in which new
surveillance technology can increase privacy when compared to traditional surveil-
lance techniques. In other contexts, new surveillance methods can provide more
security without any significant loss in privacy. But to maximize the efficiency of
these technologies, we must adopt a fresh perspective on regulating government
surveillance. We must move away from the Orwellian paradigm that views technol-
ogy as the enemy of privacy rights and find ways to make technology, including
surveillance technology, enhance our privacy.

unprecedented challenges to fourth amendment law


Law enforcement surveillance in the United States is regulated primarily by the
Fourth Amendment, as interpreted by the courts. Like most constitutional provi-
sions, the Fourth Amendment uses broad language, prohibiting “unreasonable
searches and seizures” and requiring a warrant to be supported by “probable cause.”
The most specific language in the Fourth Amendment states that people should be
secure in their “houses, papers, and effects.”18
The Fourth Amendment arose out of a series of eighteenth-century abuses
involving government agents. In two famous British cases from the 1760s, royal
agents investigating “seditious libel” against the King entered the homes of pamph-
leteers and seized all of their papers.19 Meanwhile, in the colonies, British customs
inspectors obtained broad search warrants that allowed them to search any private
residence or business for contraband, a practice that led to a number of lawsuits and
standoffs between colonists and British authorities.20 In responding to these abuses,
it is logical that the drafters of the Fourth Amendment were concerned specifically
with protecting houses and papers.
For over a century after the Fourth Amendment was ratified in 1791, government
surveillance was a straightforward affair: there were no actual “police” as we
Unprecedented Challenges to Fourth Amendment Law 3

currently understand the term (the first metropolitan police force was not created
until 1844,21 and the Federal Bureau of Investigation was not founded until 1908).22
Government agents conducting surveillance were still mostly customs agents
looking for contraband. Neither their methods of surveillance nor the places and
things they were surveilling changed in any significant way from colonial times. The
Fourth Amendment was rarely invoked but worked fairly well when it was, prohibit-
ing government agents from entering a person’s home or going through his or her
papers without a warrant. The warrants needed to be supported by probable cause –
defined as “a reasonable ground of suspicion”23 that the defendant was guilty.
In the early twentieth century, new technologies began to change surveillance
methods. The invention of the telephone allowed individuals to communicate
privately with each other from long distances, enabling conspirators to manage their
criminal enterprises without leaving their homes. Government agents responded
with a new surveillance technique: wiretapping telephones to listen in on these
private conversations.
In its initial attempt to apply the Fourth Amendment’s eighteenth century
language to new technology, the United States Supreme Court failed miserably.
The government had wiretapped the telephone of Roy Olmstead, whom they
suspected of running a large bootlegging operation. Olmstead argued that the
wiretap violated his Fourth Amendment rights. In a 1928 decision, the Court
examined the language of the Fourth Amendment and concluded that no search
occurred because the government agents had not entered Olmstead’s home.24
According to the Court, “[t]he reasonable view is that one who installs a telephone
instrument with connecting wires intends to project his voice to those quite outside,
and that the wires beyond his house, and the messages passing over them, are not
within the protection of the Fourth Amendment.”25
Over the next few decades, the Supreme Court struggled to apply the Fourth
Amendment to other new technologies. The advent of the automobile allowed
criminals to transport contraband quickly and secretly. Law enforcement responded
by stopping and searching cars – and all the containers inside the car – without
obtaining a warrant. The Court faced a choice: permit this practice and reduce the
privacy of everyone in an automobile, or prohibit the practice and allow criminals to
freely move contraband out of reach while the police went to a judge for a warrant.
Since its first automobile search case in 1925, the Court has struggled with how to
apply the Fourth Amendment in this context: it has decided over a dozen cases
involving searches of automobiles and their contents,26 and has overruled its own
precedent six times.27
As the twentieth century progressed, technological advances began to change
surveillance tools as well. Police officers traced suspects with small mobile tracking
devices; they employed informants wearing miniature recording devices; they used
drug-sniffing dogs; they installed devices that obtained outgoing phone numbers; they
flew airplanes and helicopters over homes and businesses, using telescopic cameras to
4 The Myth of the Surveillance Panopticon

photograph details on the ground and in backyards; and they conducted mandatory
urine testing for drugs on state employees.28 The Supreme Court had to judge the
legality of these searches by applying Fourth Amendment language that was meant to
prohibit customs inspectors and British soldiers from ransacking homes. These cases
pushed the traditional method of interpreting the Fourth Amendment to the breaking
point – and all of these examples are over thirty years old.
The last thirty years have only exacerbated this problem. Technological innov-
ations have given us new ways to communicate and store information and have also
given the police new methods of obtaining that information. Private citizens own
smart phones, encryption software, and other devices that allow us to convey infor-
mation in ways unfathomable two centuries ago. We use computers which can hold
the equivalent of millions of pages of information, and we store even greater
amounts of information in the cloud. We spend hours each day on the Internet,
while leaving data trails for others to follow. Law enforcement officials gather
information with Internet sniffers, drone-mounted cameras, DNA sequencing, and
thermal imagers. Meanwhile, we give private companies billions of pieces of data,
which the companies then provide to the government, who process the information
with big data algorithms.
The Supreme Court has taken important steps to adapt to these innovations. In the
early years of Fourth Amendment jurisprudence, the Court evaluated government
surveillance with a formalist binary test. If the government surveillance intruded on
the defendant’s property rights, the court deemed the surveillance a “search” and the
defendant received full Fourth Amendment protections; if the surveillance did not
infringe on property rights, it was not a search and was completely unregulated by the
Fourth Amendment. In the late 1960s, the Court adopted two revolutionary changes
to this doctrine. First, in 1967, the Court adopted a new test for whether a surveillance
constituted a “search” by focusing on whether the surveillance violated the defend-
ant’s reasonable expectation of privacy.29 One year later, the Court abandoned its
binary “search-or-no-search” rule and created a new legal standard of “reasonable
suspicion” for less intrusive methods of surveillance30 thus creating different tiers of
surveillance with different legal standards to govern each tier.
These doctrinal shifts helped the Court navigate the evolving technologies of the
late twentieth century, but they are insufficient to address modern surveillance
techniques. This book proposes that it is now time for the Court to create a new
doctrinal framework, analogous to the bold changes the Court made in the late
1960s. First, the Supreme Court needs to realign its “reasonable expectations of
privacy” analysis so that it is more precise and more reflective of what society actually
believes is intrusive. Second, the Court must adjust its legal standards to incorporate
new quantitative tools that are more and more commonplace in law enforcement
investigations, such as big data algorithms that can predict criminal behavior.
Finally, the Court must expand the number of legal standards applicable to surveil-
lance so that each standard more precisely matches the level of intrusiveness of the
The Zero-Sum Game Mentality 5

surveillance. These changes will require the Court to move away from the zero-sum
game approach31 that currently dominates its jurisprudence and evaluate new
surveillance methods through a new lens: the cost–benefit analysis theory.

the zero-sum game mentality


Over the past few decades, the Court has generally followed a specific doctrine known
as the “equilibrium adjustment theory” when applying the Fourth Amendment to
new technologies.32 The equilibrium adjustment theory is based on a fundamental
truism of criminal procedure: that the goal of policymakers is to strike the appropriate
balance between liberty and security. The underlying assumption is that there is, and
always will be, a trade-off between liberty and security, and the only way to get more
security is to forfeit some liberty. The job of the courts is to mediate that struggle, to be
referees in the “game” of cat-and-mouse between the police officer and the criminal.
Before the Fourth Amendment was written, the parameters of the game were well-
established by Benjamin Franklin, who declared: “[t]hey who can give up essential
liberty to obtain a little temporary safety, deserve neither liberty nor safety.”33
Judges frequently refer to criminal investigations as a competitive enterprise, in
which the job of the courts is to maintain the equilibrium between both sides. The
Supreme Court has repeatedly stated that the purpose of the Fourth Amendment is to
act as a safeguard against the law enforcement officer “engaged in the often competitive
enterprise of ferreting out crime.”34 In a seminal article in the Harvard Law Review
setting out the equilibrium adjustment theory,35 Professor Orin Kerr argued that “the
basic dynamic of Fourth Amendment law resembles a zero-sum game,”36 and asserted
that the fundamental principle driving Fourth Amendment jurisprudence over the past
hundred years has been the courts’ desire to maintain an “equilibrium” between police
power and civil liberties.37 As new technologies are developed and put into use by
criminals or by law enforcement officials, the equilibrium is disrupted, and the law
must adjust to restore the appropriate balance.
This zero-sum model can be represented by a one-dimensional graph, with
privacy on one end of the spectrum and security on the other end of the spectrum.
The first step requires the society to decide where it wants to set the original balance:

Privacy ---------X-----------------------X----------------------X----------------------X------- Security


Anarchy Libertarian Law and order Totalitarian
ideology ideology state

figure 1

Professor Kerr sets the balance by imagining a “Year Zero,” an imaginary time when
police investigated crime without any special investigatory tools, and when criminals
committed crime without any special technologies to aid them.38 The goal of the
equilibrium adjustment doctrine is to ensure that the balance between security and
6 The Myth of the Surveillance Panopticon

privacy remains. Assume the balance between privacy and security at Year Zero fell
somewhere close to the middle, perhaps leaning somewhat towards privacy rights:

Privacy ----------------------------------------X--------------------------------------------------- Security

fig ure 2
Assume that a technological innovation arises that increases privacy, such as the
automobile.39 When compared to Year Zero, individuals can now transport them-
selves and their cargo quickly and in relative secrecy, which increases privacy.
Criminals also get the benefit of this technology, making it easier for them to avoid
detection, which decreases security. Now, in situations where suspects use automo-
biles, the balance has shifted towards privacy rights, and away from security. This
disrupts the equilibrium:

Automobiles

Privacy ---------------------Y------------------X-------------------------------------------------- Security

fig ure 3
The law then reacts – in this case, by loosening the rules on surveillance to allow
police to search cars without a warrant.40 This change restores the equilibrium to
(roughly) the level it was at Year Zero:
Automobiles

Privacy ---------------------Y------------------X-------------------------------------------------- Security

Legal change

fig ure 4
This equilibrium adjustment process occurs with every type of new technological
innovation that individuals (and criminals) use to increase their privacy, such as
telephones41 or personal computers. It also applies to new technological innovations
that increase the government’s surveillance power. For example, assume the gov-
ernment begins to use thermal imagers to detect the heat patterns emanating from a
home.42 These devices increase security by helping police detect the presence of
heat lamps, which criminals can use to secretly grow marijuana indoors. But they
also reveal some intimate details about the home that police could not have known
in Year Zero without entering the home.43 Thus, the courts will intervene with a
new legal rule: the police may not use a thermal imager unless they first obtain
the warrant. This warrant requirement means that the interior of the home has
as much privacy as it did in Year Zero. It also neutralizes the security benefits
of the new surveillance technology: we are at exactly the same level of privacy
and security as we were before this new surveillance technology was invented.
This demonstrates how the equilibrium adjustment theory always provides a
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