Since its inception, the Fourth Amendment required striking a fine balance between individual privacy rights and the public's security interests. We understood that Fourth Amendment rights were not absolute. So over time, exceptions were carved out: metal detectors to ensure passenger safety on flights; checkpoints to combat drunk driving; dog sniffs to fight the war on drugs and more.
For each exception, we created parameters and procedures. Each of these measures was a temporary inconvenience for an identifiable greater good. If a passenger had a weapon on his or her person, the threat could be directly linked to the flight he or she was to board. If a driver was found drunk, the threat was immediate to others on the road, and if a dog sniffed out drugs, the threat of those drugs being used or distributed was apparent by virtue of their presence. There were clear cut answers. In theory, if you were a law abiding citizen, these measures were nothing but a momentary delay in your day. On the whole, these exceptions were considered reasonable in light of the security interest in question.
Then there were the more questionable applications of the Fourth Amendment like the "Terry frisk" which allowed police officers to stop and frisk individuals who looked suspicious; the "open fields" doctrine which stated that open fields were not protected by the Fourth Amendment; and the "good faith" doctrine which allowed officers to get away with unreasonable searches as long as they swore before a magistrate that it was done in good faith.
Some of these developments gave individual police officers an increased amount of discretion. Now, a police officer's subjective perception of a situation meant that Fourth Amendment laws could be applied differently across the board depending on the particular officer. By utilizing a police officer's subjective perception of a situation, Fourth Amendment laws are applied differently across the board depending on the particular officer. Increasing officer discretion is a dangerous thing. It creates inconsistency in the law. It lessens accountability as there is no set rubric against which actions have to be measured. "Reasonable suspicion" and "good faith" are concepts much like "national security" in that they often serve as a pretext to justify vast amounts of otherwise protected Fourth Amendment government activity. The consequences of using such concepts can be alarming. For example, the Center for Constitutional Rights recently reported that fifty-two percent of the individuals who were stopped and frisked by the New York Police Department between 2004 and 2012 were black, thirty-one percent were Hispanic and only ten percent were white (eight percent were other).
Since September 11, 2001, what were once the subtle increases in government discretion turned into an all-out free-for-all whereby any and all government intrusion can be justified to guard against terrorism. Over the last decade, Fourth Amendment protections have been chipped away at bit by bit starting with the oh-so nobly titled Patriot Act.
As it currently stands, the government can use roving wiretaps, delve into your medical records, take DNA samples when they arrest you, track your internet activity, monitor your home, dissect your financial transactions, investigate your business records, subpoena bulk information from free press organizations, detain you indefinitely and potentially use domestic drones to spy on you all under the guise of national security. National security has become a free pass under which the government can become increasingly intrusive with little accountability.
Recently, the National Security Agency (NSA) surveillance program has come under scrutiny for its overly broad interception of hundreds of millions of phone calls, videos, photos, emails and messages. Specifically, the NSA's PRISM program is accused of tapping into user data of Apple, Google, Facebook and some of the most powerful technology companies in the world. The leak came on the heels of another scandal in which Verizon was ordered by a secret court to turn over telephone records of millions of its customers. A few weeks ago, President Barack Obama assured Americans that a secret court oversaw the surveillance program, but the very existence of a "secret" court is a hallmark of dictatorships, not free and democratic societies. Big Brother is a reality, and probably in a more chilling way than George Orwell could have ever predicted.
You may be thinking why should you care? After all, you are not doing anything wrong so who cares what the government is collecting? However, by consenting to live in a virtual surveillance state, you are consenting to live in a society where the government can retroactively concoct a story about any of its citizens. In essence, by stockpiling data, the government can essentially link you to a crime by retroactively digging up selective fragments (and omitting others) of your past activity to paint a picture. Any picture.
There has been a shift from the momentary inconvenience of a checkpoint or metal detector to a methodical, ongoing and highly paranoid campaign of monitoring law abiding citizens. It is deliberate, it is systematic and it is unprovoked. The omnipresent nature of the spying indicates that the government is no longer interested in searching for threats based on legitimate suspicion. Instead, it has created an extensive investigative infrastructure that essentially destroys our Fourth Amendment rights.
Samar Warsi is a Senior Volunteer Attorney for the Muslim Civil Liberties Union. She holds a B.A. in Political Science from McMaster University and graduated with a J.D. from the Oklahoma City University School of Law. She is admitted to practice in the state bar of Texas.
Suggested citation: Samar Warsi, Farewell, Fourth Amendment, JURIST - Hotline, June 27, 2013, http://jurist.org/hotline/2013/06/samar-warsi-fourth-amendment.php.
This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org