Transcending Balance: Mass Surveillance and the Fourth Amendment

-- DanielShiner - 07 May 2016

Across both major political parties, the word “balance” seems to embody the current consensus regarding reform of mass surveillance. Unfortunately, this utilitarian approach, balancing the benefits of safety against privacy, has continually failed to yield any lasting privacy protection.

Why has cost-benefit style balancing not yielded meaningful change? Initially, it could have been blamed on transparency. Even if balancing is the right approach, it relies on the state being open to the public about the degree of surveillance being conducted. But after Snowden revealed the full extent of the state’s global surveillance apparatus, political inaction on mass surveillance can no longer be excused by opacity.

Instead, it may be that the status quo roughly embodies the balance the majority prefers. Psychologically, people have a bias towards overestimating the probability of vivid and memorable events. One side of the scale contains the threat of terrorism, which involves extremely rare but psychologically impactful events. On the other side, the public must weigh something amorphous and invisible, whose only harm they have experienced (so far) is the feeling of being watched.

Even if progress can be made through balancing, eventually stepping away from ubiquitous surveillance, any protection would be hard won and easily lost—disintegrating in the wake of the next memorable terrorist attack.

Though I remain pessimistic that mass surveillance can be defeated through law or politics, surrender on these grounds is not necessarily warranted. While the current national debate tends to focus on the balance between security and privacy, to be decided by a democratic majority, reframing the debate as one over individual rights could be more fruitful.

Can Rights Help?

The Soviet constitution asserted many rights, but they were meaningless. Even in the United States itself, unpopular constitutional rights lacking public support tend to wither and die.

Reservations aside, rights can be strategically helpful depending on the context. This is especially true in the United States, which has a strong (if deeply flawed) cultural history regarding individual rights. From the Declaration onward, the United States government has based its legitimacy on the protection of individual rights. While it has dismally failed to live up to that promise, enforcing and legitimizing the owning of human beings among other horrors, the sometimes anti-statist individualist cultural traditions stemming from the enlightenment continue to have a strong influence.

Important for our purposes, certain rights have proven durable despite changing political tides and potential emergency exceptions, defeating the practical urge to balance. Freedom of speech, protected by the First Amendment, is the classic example. It has provided unparalleled protection for speech, despite the perennial temptation to draw a balance by silencing hateful or unpopular voices.

The Fourth Amendment

The transformation of the Second Amendment provides a relevant case in rights-craft. Despite the fact that the Second Amendment was not recognized as protecting an individual right to bear arms, it was used as a viable seed to birth that right. The soil allowing for its germination was its ties to America’s gun culture engrained in the traditions of individualism and skepticism of state power.

Spreading their views and holding politicians accountable for violations of the potential right, activists transformed the individual right to bear arms into something that has become unquestionable to a large portion of the country. After this public belief emerged, the Supreme Court recognized the right in Heller, legitimizing it in the eyes of the law.

The Second Amendment's transformation provides evidence that the Fourth Amendment can be successfully rehabilitated and bolstered as a shield against mass surveillance. The Fourth Amendment’s language and surrounding precedent do not provide solid footing, but neither did the Second Amendment.

Textually recognizing a right against only “unreasonable” searches and seizures, the Fourth Amendment appears to invite balancing on its face. However, read in light of the enlightenment tradition of which the Fourth Amendment is a part, certain kinds of searches or seizures could be understood as unreasonable per se. Informed by the amendment’s language concerning particularity and probable cause, and bolstered by the American individualist cultural tradition, it seems that a plausible argument could be made be that indiscriminant bulk state surveillance is unreasonable per se, regardless of the surrounding circumstances.

While such a turn in Fourth Amendment jurisprudence seems extremely unlikely in the short run, the Second Amendment’s transformation could provide a roadmap for moving forward. Education of the public, in concert with pressure on politicians for violating the potential right, could build the foundation for a new interpretation.

While I am still pessimistic that mass surveillance can be stopped through the political or legal process, the Fourth Amendment, despite its substantial weaknesses for this purpose, provides the best basis for doing so. Even if the Supreme Court refused to recognize this reading of the Fourth Amendment, a public commitment to it can be almost as powerful and can potentially lead to legitimization by the court down the line.