In the United States, the Fourth Amendment regulates citizens' right to privacy from the government. Unfortunately it was written over 200 years ago, long before mass electronic surveillance. But now there are hopeful signs that interpretations of the Fourth Amendment may get much-needed updates in 2014.
Cyberlaw expert and privacy advocate Jennifer Granick has a terrific post over at Just Security on why some recent legal decisions that suggest 2014 may be the year when judicial interpretations of the Fourth Amendment are broadened to regulate mass surveillance. She describes two key judgements from 2013, related to mass surveillance and laptop searches at the US borders, and then concludes:
This year's NSA revelations show that—to a far greater extent than was publicly known—we are living in that mass surveillance world. A consensus seems to be emerging that the Fourth Amendment must evolve along with technology and government surveillance capabilities, and that it is the job of the lower courts to investigate and to rule accordingly. Indeed, if lower courts slavishly follow the closest analogous Supreme Court case on hand, rather than seriously consider whether facts, policies and practices on the ground have changed, higher courts will not benefit from the best fact-finding and the best legal reasoning incubated in the lower federal courts.
The fact that a government agency can technologically and economically accomplish the feat of collecting data on every phone subscriber, and making profiles of hundreds of millions of people, is an unprecedented power. The government used to be limited in its power to investigate and profile people by economics and technology. Increasingly, only the law would limit such practices. Will courts employ the Fourth Amendment to do privacy-protecting work that economic disincentives performed in the past? Recent opinions, from the concurrences in United States v. Jones, to today's decision by Judge Korman suggest they will. Here's to seeing that happen in 2014.
Granick is not typically bullish on civil liberties gains — she's been involved in plenty of uphill legal battles. So if she's optimistic about the future of the Fourth Amendment, that's a very good sign.
Read the full article over at Just Security