Yesterday Paul Rosenzweig pointed out an interesting law review article regarding the Fourth Amendment in the context of a nuclear terrorism scenario. The Fourth Amendment protects us against "unreasonable" searches and courts have ruled that the police do not have to establish probable cause or get a warrant in order to perform a search if that search occurs in a narrow set of circumstances that are thought to be "presumptively reasonable." In fact, in most national security contexts, warrantless searches are thought by the courts to be presumptively reasonable as far as the Fourth Amendment is concerned, and its not much of a stretch to imagine that they'd be allowed in a "Jack Bauer" scenario where the hunt is on for a nuclear terrorist.

What struck me as troubling about this article wasn't its main argument, but rather, a footnote. The article concludes that in a scenario where there is a high probability of a serious attack, the Fourth Amendment might allow for searches without probable cause. However, it struggles with how to handle the scenario where there is a risk of a serious attack, but there is a low probability of the attack actually happening. At this point the author does something interesting - he looks forward to a future in which technology will solve this problem, by liberating law enforcement from the Fourth Amendment's restrictions on mass surveillance. He writes:

"The most difficult question to resolve is the one where there is a low probability of a high consequence attack. One day, technology may provide a solution. 278"

Footnote 278 continues:

"278 To the extent that voice-to-text transcription technology for wire communications evolves in the future to a point at which automated processes can accurately screen the content of the communications, the use of such technology, coupled with minimization on the front-end, would prevent any “human observation” of the content of the communications. Compare Google, “How Gmail Ads Work,” available at https://support.google.com/mail/answer/6603?hl=en (“Ad targeting in Gmail is fully automated, and no humans read your email or Google Account information in order to show you advertisements or related information.”) with Orin Kerr, Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 535 (2005) (a Fourth Amendment search is best described as the process by which “data is exposed to human observation”).

What the author is saying here is that if the government uses a computer to search the content of your phone calls, or your emails, or anything else, for that matter, that isn't technically a "search" as far as the Fourth Amendment is concerned. Therefore, they don't need a warrant. They don't need probable cause. They can just do it. And this argu... [ Read More (0.4k in body) ]