Computers, Privacy & the Constitution

Deconstructing the Surveillance Apparatus

Exclusions Are Not Enough

Proponents of a more protective Fourth Amendment jurisprudence have some cause for optimism this decade. The decisions in United States v. Jones, 565 U.S. 400 (2012) and Riley v. California, 134 S. Ct. 2473 (2014), both written by right-leaning justices of the Court, convey a larger recognition about the propriety of searching digital data that cuts across party lines. Commentators remain hopeful this bipartisan agreement will result in further limitations on the third-party doctrine when the Court comes down with its decision in U.S. v. Carpenter later this year. These developments shouldn’t be discounted and indeed offer a degree of protection for the digitally-connected defendant.

The issue with these cases is the existing remedy—the exclusionary rule—is entirely deficient in rectifying the central danger our society now confronts: the very existence of an enormous and ever-expanding federal surveillance apparatus. To clarify, its continued physical existence is the issue; attempts at control through formalities and norms (i.e. warrants and “probable cause”) become instantly ineffectual the instant the apparatus falls into the hands of those who happily subvert those intangibles. Therefore, it is not apparent how a slow, incremental increase in the warrant requirement will effectuate its deconstruction. Suppose the Court rules that people do have an expectation of privacy in their digital records. Certainly, the defendants in these cases appreciate the ex-post ramifications of having crucial adverse evidence suppressed. But the ex-ante benefit to the rest of the populace is virtually nil.

After all, federal law enforcement has specifically worked out mechanisms, like parallel construction of evidence, to evade warrant requirements. Presumably these will only become more sophisticated. An expanded warrant requirement that would have rendered the existing apparatus useless in agglomerating inadmissible evidence is instead itself gutted. Even worse, a heightened warrant means that law enforcement is even more likely to utilize the crystal ball of the surveillance apparatus to access information they will later conjure up through other means.

Second, the exclusionary rule only helps individuals who become subject to a criminal proceeding as a result of wrongful search. If the larger surveillance apparatus is targeting essentially every American, however, then clearly this rule does little to stop the vast majority of warrantless searches. The typical remedy thus creates a perverse situation where innocent citizens, accused of no crimes, are unable to vindicate their constitutional rights.

Political and Judicial Obstacles

A natural response might be that the courts act appropriately in offering a circumscribed remedy. Their role is to adjudicate individual cases, not to effectuate policy outcomes, so the courts should limit themselves to the most narrowly-tailored remedy possible. Linked to this view is the often difficult obstacle of standing for citizens who want to mount a challenge to widespread surveillance programs. The Court first relied on standing in the 1960s to foreclose a suit against politically-motivated surveillance. See Laird v. Tatum, 408 U.S. 1 (1972). The requirement that an individual demonstrate a direct injury in the context of national intelligence-level surveillance has rightly been deemed a “Catch-22”. Alleging that a specific individual was indeed the subject of surveillance typically requires some form of discovery, but discovery cannot commence if the plaintiff does not have standing.

All of this might lead to the conclusion that the surveillance apparatus issue is more susceptible of a political solution. Congressional action would absolutely be preferable. Unfortunately, the terrorist attacks of September 11th, 2011 have resulted in a complete absence of political will to reign in federal law enforcement. The Snowden revelations should have produced a response analogous to the Church Committee and the attendant landmark legislation of the period (FISA). Instead, all we got was the paltry USA Freedom Act.

In any event, where there are flagrant violations of constitutional provisions that uphold the pillars of a democratic society (the First and Fourth Amendment), it is unclear why the malleable doctrine of standing should win out. That the courts should play a role in delimiting crucial constitutional boundaries is surely just as important as the idea that courts should refrain from acting on a so-called “generalized grievance.” Especially in a context where there are known, rampant violations and where the political branches are largely disincentivized to act, the Court should be more accommodating of those who seek to reassert fundamental rights.

Damages as Appropriations

In the event that a surveillee, as it were, was able to clear the standing hurdle, there would still be the question of a remedy. If the current surveillance apparatus by its very existence indeed does “chill speech” or effect warrantless searches on a vast scale, then it seems reasonable that a class of individuals could extract some form of damages. Acknowledging that, as with standing, it’s an inauspicious jurisprudential moment to advocate for the expansion of a Bivens-type remedy, perhaps a fully-aired accounting of the scale of surveillance—and the potential capabilities of that scale—would impress upon the Court the need to revisit recent decisions.

Damages in these cases would hopefully act as a kind of judicial method of removing appropriations from the federal surveillance apparatus, fulfilling the political role where Congress has failed. The exact details of this need to be hashed out (e.g., how to determine compensatory damages or whether there would be a possibility of punitive damages), but the overall idea would help implement the desired outcome: dismantling the surveillance apparatus. Already empowered to act as the final arbiter of constitutional boundaries, the Court should take up this permissible, if expansive, solution to enforce those limits.

Improving this draft involves increasing its focus. One can say in two or three sentences why evidentiary exclusion is not a sufficient control over mass surveillance. That this is a political issue requires only a sentence or two more. Then we confront the issue the present draft ducks: if there is no consensus in the political branches for additional legislative limitations, there is no reliable route to judicial checks on the system, because the legal basis for judicial action is absent. (A point that has been made by several judges in the course of deciding existing cases, including Judge and Professor Jerry Lynch.) Bivens actions, like exclusion, are oriented towards control of individual acts of invasion, not the structural reorientation of society around comprehensive surveillance. Without a legal basis for these damages actions you propose, there aren't any actions, any damages, or any leverage for change. Nor is there any reason to suppose that the consensus absent in the political branches is present in the judiciary.


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r4 - 10 Jun 2018 - 14:02:20 - EbenMoglen
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