Slobogin, C. (2007). Privacy at Risk: The New Government Surveillance and the Fourth Amendment. University Of Chicago Press.

In America today, privacy is slowly becoming a fleeting memory. After the terrorist attacks on 9/11, fear has become the fuel by which the Bush Administration has enacted some of the most far-reaching legislative acts to retract privacy protection in this country. From the USA PATRIOT Act to warrant-less wiretapping, the concept and protections of privacy have taken a backseat to the political interests of the state.

Traditionally, the Fourth Amendment to the United States Constitution has provided a measure of protection against unreasonable searches and seizures; and by judicial interpretation, a right to personal privacy against government intrusion. Ever since Katz v. United States in 1967, the Fourth Amendment has served as the yardstick for measuring the protection of personal privacy. However, recent measures of political and security related importance have belittled the citizen’s right to privacy in a variety of settings.

In Privacy at Risk: The New Government Surveillance and the Fourth Amendment Christopher Slobogin addresses the issues of the Fourth Amendment’s protection of personal privacy and how recent legislative actions have eroded those protections. Slobogin proposes a more liberal reading of the Fourth Amendment’s privacy protections and extends the “proportionality principle” stated in Terry v. Ohio which states that government privacy intrusions should be proportional to the strength of their justification.

Using case law, legal histories, and interpretations, Slobogin begins by outlining the history of the protection of privacy and the impact of privacy law today. He then introduces the two primary modes of government surveillance: physical and transactional. Within each surveillance type, Slobogin outlines the type, methods, and applicable case law of the surveillance and provides solutions for maintaining privacy rights while still enabling agents of the government to enforce criminal laws and gather intelligence.

Central to Slobogin’s argument is the concept of proportionality in the balance of government intrusion and privacy. As outlined in Terry, Chief Justice Earl Warren stated that the Fourth Amendment protected, “people, not places.” Terry also outlined a proportionality principle that stated the primary way in determining the reasonableness of a search or seizure was by balancing its need against the invasion it entails. However, Slobogin takes the proportionality principle in Terry and expands upon it by creating a hierarchical sliding-scale system of privacy invasion levels against justification as well as suggesting ex ante review when possible. Slobogin provides a normative example:

The innocent person who is arrested or the target of a bedroom surveillance will expect a “damn good reason” for the inconvenience and intrusion. The innocent person who is stopped on the street for a brief interrogation or tracked by a public camera is likely to be satisfied with a less extensive explanation for the government attention. (p. 39)

Thus, according to the proportionality principle, the more intrusive the government action, the more justification and legitimate cause should be necessary.

In Slobogin’s discussion of physical surveillance, he delineates between private (private property) and public settings. With regard to the sanctity of the home, our ultimate and most final refuge of privacy, modern technology has allowed for the massive unannounced intrusion of government surveillance. In Kyllo v. United States, government agents used a thermal imaging device to detect elevated heat signatures emanating from a home where the occupant was growing illegal drugs. While the Supreme Court ruled this type of activity a search, thus requiring a warrant, it also left open the general public use and naked eye exceptions which Slobogin sees as being detrimental to the protection of privacy. His resolution to the Kyllo exceptions is to rule any home surveillance a search requiring necessary cause in addition to outlawing the “unauthorized use of technology to view the home, thereby ensuring that it never becomes routine” (p. 78).

While addressing privacy rights in public, Slobogin focuses on the use of closed-circuit television (CCTV) as a means of government surveillance. While generally justified as a crime prevention or deterrent device, CCTV systems have the potential to violate privacy with little positive gain. Drawing largely upon experiences in the United Kingdom, the “champions of CCTV” (p. 83), Sobogin cites a number of studies and reasons why CCTV efficacy may not be worth the cost to privacy. Of the many reasons cited, behavior modification and public anonymity stood out to me as major antagonists to CCTV’s legitimacy.

As Slobogin clearly outlines, the mere knowledge of being watched modifies individual and group behavior to conform to the norms of the watchers which may not be inline with the desires of the observed individuals. These modification in behavior may be conscious or unconscious but both have repercussions on the individual’s First Amendment freedoms. Slobogin draws upon Foucault’s panopticon analogy in stressing that a free society should not be pressured to conform their behavior so long as such behavior is legally permissible. This idea has large implications for the freedom of our society. It impacts everything from freedom of speech and association to travel and daily routines.

The concept of public anonymity also serves as a prominent reason against the adoption of CCTV surveillance. While individuals in public settings only occasionally have an expectation of privacy, Slobogin, drawing upon Peter Westin, argues that there ought to be a constitutional right to anonymity in public. In this sense, anonymity means that, to the government, you are no different from the person next to you; given that you are law abiding and do not voluntarily draw the government’s attention. This concept is important in that it provides a general measure of privacy in an otherwise public setting.

In justifying the constitutional dimensions of CCTV surveillance, Slobogin champions the idea that CCTV operations can most certainly be considered searches: “Yet as a linguistic matter, once camera operators shift from scanning crowds to targeting individuals, they are certainly engaging in a search” (p. 136). As a result, physical surveillance should be more thoroughly regulated, at the state level if need be, to prevent “dragnet law enforcement practices” (p. 136). This measure of constitutional protection not only extends to CCTV but rightfully to other tracking technologies like global positioning systems (GPS), satellite cameras, radio frequency identification (RFID), and other detection/tracking technologies.

In the final section, on transactional surveillance, Slobogin addresses the privacy concerns of personal documents and government subpoenas. Traditionally in the domain of the Fifth Amendment’s protection against self incrimination, modern use of the subpoena has seen greater efficacy thanks to a diminished reading of the Fifth Amendment’s protections on personal documents.

As Slobogin points out, in our age of high technology and voluminous information transactions, much of our personal documents and records lie in the care of third parties. Whether it be bank, internet, phone, or health records; much of the “paper trail” of modern life is recorded by others. This represents a problem for individual privacy and self incrimination. When presented with a subpoena, a third party cannot use the defense of self incrimination provided by the Fifth Amendment and thus, is obliged to turn over our personal information. Thus, even though our own private documents may contain incriminating information, they can fall outside of the protection of the Fifth Amendment.

This legal approach to third-party document access is rooted in United States V. Miller, which held that when information is possessed by a third party, such information must have been surrendered voluntarily. However, Slobogin argues, and I very much agree, that many of the generally accepted functions of modern American life involve the mandatory surrender of information to third parties. For instance, if I want to have the ability to have a home telephone line for emergencies, I must provide information to the telephone company. This sort of information, while technically voluntary, can be generally agreed upon to also be a requirement to live in our society; as might be internet access, automobile ownership, etc. People “have to” have a means of communication, especially in cases of requiring emergency assistance!

Slobogin’s response to the erosion of the Fifth Amendment’s protections in the case of transaction surveillance is, again, rooted in the strengthening of the Fourth Amendment’s privacy protections:

In short, the Fourth Amendment should be interpreted to demand that all “papers” within the zone of privacy-whether held by the subject or by a third-party institution-be afforded protection similar to that extended to the individual’s house, person, and effects. (p. 167)

Again, Slobogin champions the proportionality approach, ordering documents such as corporate, travel, and financial on a scale opposite the suggested requisite level of authorization and certainty (p. 186). Thus, as the information requested gets more and more personal, the level of authorization (subpoena, court order, etc) and certainty (relevance, reasonable suspicion, and probably cause) rises as well.

In reading Privacy at Risk, I was reminded of the many freedoms that have slowly begun to fade away. Everyday, average citizens are seen, and thus treated, with more suspicion as the fear of another terrorist attack is pressed into us by our leaders and the media. What used to be commonplace is now questioned. Different is becoming dangerous and the freedom of an open mind is seen more as a temporary exercise in futility rather than a means of acceptance and understanding.

Christopher Slobogin, in attacking our country’s disregard for protecting our constitutional foundations, has outlined one method for returning one of the most important and fundamental rights back to the American people. The right to privacy has slowly degraded to the point of near anemia. Whether the causes be technological, social, or political, something must be done to stem the regression of our privacy rights. Slobogin’s answer to this crisis is through a new interpretation of the Fourth Amendment. By extending constitutional protection to physical and transactional surveillance and implementing a proportionality based privacy invasion justification scheme, the people are more thoroughly protected from aberrant and purposeful invasions of privacy by the government.

Tags: Amendment, freedom, government, Internet, intrusion, invasion, justification, law, legitimacy, privacy, Slobogin, surveillance, technology