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.Granick is certainly correct to conclude that this year will be an interesting one for the Fourth Amendment. It will be interesting to see how far courts will be willing to go given some of the tough precedents that stand in the way of the Fourth Amendment's evolution, and whether the Supreme Court will ever weigh in on any of these issues.
Friday, January 3, 2014
Granick on the Need for the Fourth Amendment to Evolve
Jennifer Granick has this provocative post at Just Security. She discusses several of the most recent cases testing the constitutionality of the NSA's surveillance programs, and other surveillance tactics the government uses (including cases I discuss here, here, and here) and concludes: