The Volokh Conspiracy - "Do We Need a New Fourth Amendment?":

I have posted a new draft on SSRN: Do We Need a New Fourth Amendment?, forthcoming in the Michigan Law Review book review issue. It's a review of Professor Christopher Slobogin's new book, Privacy at Risk: The New Government Surveillance and the Fourth Amendment. Here's the abstract:

In his new book, 'Privacy At Risk,' Professor Christopher Slobogin offers a new approach to the Fourth Amendment designed to impose more restrictions on government surveillance practices. He contends that the Fourth Amendment should be organized around a proportionality principle: Every investigative technique should require some cause, and public opinion as to the intrusiveness of the technique should determine how much cause is required. Professor Slobogin applies this principle to transactional surveillance and closed circuit television and generates a complex set of proposed Fourth Amendment rules to govern their use by government actors.
In this book review, Professor Orin Kerr argues that even a Supreme Court sympathetic to Slobogin's policy preferences should be wary of his proposal. Slobogin's method suffers from two major flaws. First, the proportionality principle does not accurately weigh the interests it claims to weigh. Public perceptions of intrusiveness do not measure privacy interests, and the government's level of proof does not measure government interests. Further, the method stacks the deck in favor of limiting government action by ignoring the context in which techniques are used. Second, a future Supreme Court could reach Slobogin's results in much simpler ways. Slobogin's approach is surprisingly complicated, as it requires courts to master the intricacies of public opinion surveys to determine public perceptions of intrusiveness. Easier paths exist if a future Supreme Court majority wishes to regulate transactional and public surveillance under the Fourth Amendment.

Also, here's the first paragraph of the review:

Imagine the year is 2035. Two terms of President Barack Obama, two terms of President Hillary Clinton, and two terms of President Corey Booker have led to a new Supreme Court. The liberal majority led by Chief Justice Harold Koh is eager to make some waves, and the Justices have set their eyes on the Fourth Amendment. They want to design a new Fourth Amendment that will match their civil libertarian privacy preferences, and they are relatively unconcerned with pragmatic limitations on judicial rulemaking. They want to return the Court to what they see as its rightful place at the center of American privacy law, and they are looking for a method that combines some traditional principles with a new set of innovations.

Comments welcome, as always. (It's just a rough draft, so no need for comments about typos and the like — we'll get them later on.)

	[Orin Kerr, August 19, 2008 at 12:06pm] Trackbacks "Do We Need a New Fourth Amendment?": I have posted a new draft on SSRN: Do We Need a New Fourth Amendment?, forthcoming in the Michigan Law Review book review issue. It's a review of Professor Christopher Slobogin's new book, Privacy at Risk: The New Government Surveillance and the Fourth Amendment. Here's the abstract: In his new book, 'Privacy At Risk,' Professor Christopher Slobogin offers a new approach to the Fourth Amendment designed to impose more restrictions on government surveillance practices. He contends that the Fourth Amendment should be organized around a proportionality principle: Every investigative technique should require some cause, and public opinion as to the intrusiveness of the technique should determine how much cause is required. Professor Slobogin applies this principle to transactional surveillance and closed circuit television and generates a complex set of proposed Fourth Amendment rules to govern their use by government actors. In this book review, Professor Orin Kerr argues that even a Supreme Court sympathetic to Slobogin's policy preferences should be wary of his proposal. Slobogin's method suffers from two major flaws. First, the proportionality principle does not accurately weigh the interests it claims to weigh. Public perceptions of intrusiveness do not measure privacy interests, and the government's level of proof does not measure government interests. Further, the method stacks the deck in favor of limiting government action by ignoring the context in which techniques are used. Second, a future Supreme Court could reach Slobogin's results in much simpler ways. Slobogin's approach is surprisingly complicated, as it requires courts to master the intricacies of public opinion surveys to determine public perceptions of intrusiveness. Easier paths exist if a future Supreme Court majority wishes to regulate transactional and public surveillance under the Fourth Amendment. Also, here's the first paragraph of the review: Imagine the year is 2035. Two terms of President Barack Obama, two terms of President Hillary Clinton, and two terms of President Corey Booker have led to a new Supreme Court. The liberal majority led by Chief Justice Harold Koh is eager to make some waves, and the Justices have set their eyes on the Fourth Amendment. They want to design a new Fourth Amendment that will match their civil libertarian privacy preferences, and they are relatively unconcerned with pragmatic limitations on judicial rulemaking. They want to return the Court to what they see as its rightful place at the center of American privacy law, and they are looking for a method that combines some traditional principles with a new set of innovations. Comments welcome, as always. (It's just a rough draft, so no need for comments about typos and the like — we'll get them later on.)