In United States v. Jones, the Supreme Court held unanimously that the government had violated the Fourth Amendment by placing a GPS tracking device on a car without prior court approval. Although no member of the Court accepted the government’s argument that no search or seizure existed because only the car’s movements were being tracked and those were already publicly observable, the Court split on whether the heart of the case was that the government’s conduct constituted a search or that it violated reasonable expectations of privacy. Peter contends that the core concern is the potential exercise of “standardless and unconstrained discretion,” and that the appropriate response is to judge both the existence of a search and its reasonableness in the high-tech arena by a combination of the amount of underlying suspicion and the procedures involved to ensure evenhanded treatment. Peter looks to the Court’s Fourth Amendment jurisprudence surrounding checkpoints and its tailoring jurisprudence, requiring minimization procedures in wiretaps, as examples of standards set out in advance and subject to post hoc judicial review as effective means of limiting discretion.

In this essay, Swire reviews Professor Christopher Slobogin’s book, Privacy at Risk: The New Government Surveillance and the Future of the Fourth Amendment. The essay brings a privacy scholar’s perspective to a capstone work by a Fourth Amendment expert. Drawing on his previous work, Professor Slobogin, as the essay describes it, “hopes to re-organize Fourth Amendment doctrine for high-technology searches around the Proportionality Principle, which focuses on the degree of intrusiveness of the government action.” This contrasts with many circumstances of current Fourth Amendment doctrine which has a more binary, protected/unprotected approach.

Swire finds much to like in Slobogin’s thesis. For example, as detailed by Slobogin, the Proportionality Principle would bring scrutiny to the increasingly widespread use of closed-circuit television surveillance of public places. Swire thinks this would generally amount to commendable protection, noting that some of it is provided for by statute in the case of federal action (though he questions whether courts will be willing to constitutionalize such a detail-oriented analysis). As an additional example of the principle’s usefulness, the essay suggests its application to laptop searches at the border (currently, such searches may be conducted without reasonable suspicion).

At the same time, the essay notes two elements missing from the book’s coverage. First, Swire notes that the book omits discussion of the growing area of national security searches and seizures, in which federal law allows the government to access many kinds of records without recourse to a judge. Since September 11, such searches occur more than thirty-thousand times per year, and, Swire reports, the trend will continue with the 2008 update of the Foreign Intelligence Surveillance Act. Second, Swire notes the extensive international literature on the Proportionality Principle that Slobogin advocates, a broader debate that Slobogin could take part in.

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