Surveillance and Resources

The St. Petersburg (FL) Times has a good story today by Jamal Thalji, Should authorities need a warrant to put a GPS tracking device on your car?.

I'm quoted towards the end:

Those conflicting rulings mean the U.S. Supreme Court will likely decide the issue.

The real issue is resources, said University of Miami law professor Michael Froomkin. When the courts first gave the government the right to remotely track suspects, no one thought they'd one day have the money or technology to do so constantly.

“There was an unstated assumption behind a great deal of Fourth Amendment jurisprudence in our history that says surveillance is expensive and therefore has natural limits,” he said. “That unstated assumption that people took for granted is no longer true.”

And therein, I think, lies the problem — we are working with doctrine that doesn't fit the new technical and economic realities.

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5 Responses to Surveillance and Resources

  1. Just me says:

    Judge Kozinski dissent in US v. Pineda-Moreno is great. It is so good that I briefly considered taking a huge pay-cut and going to work for the State’s attorney’s office to try to do my part (my wife quickly killed that idea…LOL).

    Mind you, I say the state’s attorney’s office and not the public defender because I think you can do more to protect freedom as an honest prosecutor than you ever can as a criminal defense attorney.

  2. Vic says:

    Not that I disagree with you on this at all Michael (I don’t), but if it’s handy, I think it’d be interesting to get a brief overview on the subject. Maybe explain how something can be both unstated and implied in a SCOTUS opinion(s?) like this. I think it would be interesting. (though I know you are likely too busy)

    It’s just another example of unintended consequences, to me.

  3. michael says:

    Maybe this weekend; pretty busy until Sunday.

  4. eck says:

    I don’t think there’s anything at all implicit about what the Supreme Court held in Knotts (1983):

    Insofar as respondent’s complaint appears to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality, and we decline to do so now.

  5. michael says:

    True, but that comes towards the end of a long line of doctrine. And it makes my point: given the way our doctrine works, there is no way to argue, with any hope of success, that we need to reinterpret the Fourth Amendment to try to restore the citizen/state relation relating to surveillance to somewhere near where it might have been in the 1790s. The door to a functionalist approach is closed doctrinally. I see that as a problem.

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