Proportionality, privacy, and public opinion: A reply to Kerr and Swire

Minnesota Law Review

Volumn 94, Issue 5, 2010, Pages 1588-1619

  Slobogin, Christopher ^a  

^a VANDERBILT UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79251635995     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (218)

1. CHRISTOPHER SLOBOGIN, PRIVACY AT RISK: THE NEW GOVERNMENT SURVEILLANCE AND THE FOURTH AMENDMENT (2007).
2. See infra text accompanying notes 23-25 (describing cases).
3. SLOBOGIN, supra note 1, at 21-48.
4. Id. at 21, 28-30
5. (describing proportionality reasoning in Terry v. Ohio, 392 U. S. 1 (1968), and in various other settings in connection with standards of proof, equal protection law, and tort law).
6. SLOBOGIN, supra note 1, at 18-19.
7. Orin S. Kerr, Do We Need a New Fourth Amendment?, 107 MICH. L. REV. 951, 966 (2009).
8. Peter P. Swire, Proportionality for High-Tech Searches, 6 OHIO ST. J. CRIM. L. 751, 751 (2009).
9. Symposium, Cyberspace and the Law: Privacy, Property, and Crime in the Virtual Frontier, 94 MINN. L. REV. 1303 (2010).
10. See DAVID L. FAIGMAN, CONSTITUTIONAL FICTIONS: A UNIFIED THEORY OF CONSTITUTIONAL FACTS 162 (2008).
11. Richard C. Worf, The Case for Rational Basis Review of General Suspicionless Searches and Seizures, 23 TOURO L. REV. 93 (2007).
12. See SLOBOGIN, supra note 1, at 18.
13. See Kerr, supra note 6, at 951.
14. See, e.g., Payton v. New York, 445 U. S. 573, 588-90 (1980) (holding that the nonexigent entry of a home to effect an arrest or search requires a warrant based on probable cause because the Fourth Amendment "unequivocally establishes the proposition that '[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion'"
15. (quoting Silverman v. United States, 365 U. S. 505, 511 (1961))).
16. Terry v. Ohio, 392 U. S. 1, 26 (1968) (permitting a frisk for weapons and the predicate stop on less than probable cause because it only "constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person").
17. See Mich. Dep't of State Police v. Sitz, 496 U. S. 444, 455 (1990) (upholding suspicionless stops at sobriety checkpoints, given "the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped");
18. United States v. Martinez-Fuerte, 428 U. S. 543, 562 (1976) (upholding suspicionless checkpoints to detect illegal immigrants because "the reasonableness of the procedures followed in making these checkpoint stops makes the resulting intrusion on the interests of motorists minimal").
19. See, e.g., Bd. of Educ. v. Earls, 536 U. S. 822, 829 (2002) (upholding suspicionless drug testing of students involved in extracurricular activities, stating that "[i]t is true that we generally determine the reasonableness of a search by balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests [but] in the context of safety and administrative regulations, a search unsupported by probable cause may be reasonable when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable" (internal quotation marks omitted)).
20. See infra text accompanying notes 146-57.
21. 392 U. S. at 21
22. (citing Camara v. Mun. Court, 387 U. S. 523, 536-37 (1967)).
23. See SLOBOGIN, supra note 1, at 17.
24. See id. at 6-9 (defining physical surveillance).
25. See id. at 9-13 (defining transaction surveillance).
26. See id. at 3.
27. Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring).
28. See, e.g., Kyllo v. United States, 533 U. S. 27, 40 (2001) (strongly suggesting that no search occurs "where... Government uses a device that is... in general public use, to explore details of the home... without physical intrusion");
29. California v. Ciraolo, 476 U. S. 207, 213-14 (1986) (holding that the viewing of a backyard from an airplane in navigable airspace was not a search because "[a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed").
30. Smith v. Maryland, 442 U. S. 735, 743-44 (1979) ("This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.");
31. United States v. Miller, 425 U. S. 435, 443 (1976) ("The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.").
32. SLOBOGIN, supra note 1, at 108-10. The Court itself has recognized this point in the abstract.
33. See Rakas v. Illinois, 439 U. S. 128, 143 n. 12 (1978) ("Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society."). In practice, however, the Court has ignored it.
34. See Slobogin, supra note 1, at 68-69.
35. Id. at 157-58.
36. Id. at 113-16.
37. The surveys, all of which are discussed in Privacy at Risk, first appeared in Christopher Slobogin, Government Data Mining and the Fourth Amendment, 75 U. CHI. L. REV. 317, 335 (2008) [hereinafter, Slobogin, Data Mining];
38. Christopher Slobogin, Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity, 72 MISS. L. J. 213, 277 (2002);
39. Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at "Understandings Recognized and Permitted by Society", 42 DUKE L. J. 727, 738 (1993).
40. See, e.g., SLOBOGIN, supra note 1, at 111.
41. See id. at 112 (showing a mean intrusiveness rating (MIR) of 35 for roadblock scenario and of 53 for overt camera scenario in which tapes are destroyed);
42. see also id. at 184 (showing MIRs for scenarios involving obtaining information from websites, ISPs, pharmacies, and banks between 74.4 and 78.0).
43. This focus means that this Article (like Professor Kerr's review) neglects several aspects of Privacy at Risk. Kerr's review looks only at the discussion of the proportionality principle in Chapter 2 and three later chapters (Chapters 4, 5, and 7) describing how that principle would apply to surveillance of public activities and to transaction surveillance. See Kerr, supra note 6, at 952. Chapter 2 also develops the "exigency" principle (which requires ex ante review of nonemergency searches and seizures) and critiques other Fourth Amendment theories.
44. SLOBOGIN, supra note 1. Also not discussed here or in Kerr's review are Chapter 3, which is devoted to technological surveillance of the home; Chapter 6, which provides an historical analysis of subpoena law (an analysis that is crucial to understanding how we ended up without any constitutional regulation of transaction surveillance); and Chapter 8, which is a concluding discussion of how the "liberal" view of the Fourth Amendment-requiring individualized probable cause for all searches and exclusion as a remedy-has inadvertently and ironically resulted in a much smaller Fourth Amendment than we would have if liberals had been a little less greedy.
45. Id.
46. Swire, supra note 7, at 757.
47. Kerr, supra note 6, at 959.
48. One reason, of course, is precisely the fact that the concept of privacy is open to so many interpretations. See generally Daniel J. Solove, Conceptualizing Privacy, 90 CAL. L. REV. 1087 (2002) (exploring the multiple meanings of privacy). Additionally, framing the survey in terms of privacy expectations would have signaled the purpose of the survey to those who know Fourth Amendment law, would not have permitted sensible answers to scenarios involving seizures rather than searches, and would have in essence asked the intrusiveness question in any event, with a question sounding something like: "On a scale of 1 to 100, how significant is the privacy invasion in the following scenarios?" A further advantage of using the word "intrusion" without reference to privacy is that it minimizes the effect of foreknowledge about the law: one might feel intruded upon despite a subjective recognition that the law does not consider the intrusion to be an invasion of privacy.
49. See generally Chart Prepared by Andrew Cunningham, Student, Vanderbilt University Law School (2009) (on file with author) (depicting holdings in 227 U. S. Supreme Court Fourth Amendment cases in which "intrusion" or "invasion" or some variant thereof was used in describing the Court's reasoning).
50. Scott v. Harris, 127 S. Ct. 1769, 1778 (2007)
51. (quoting United States v. Place, 462 U. S. 696, 703 (1983)).
52. See supra notes 13-16;
53. see also Delaware v. Prouse, 440 U. S. 648, 653-54 (1979) ("The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of reasonableness upon the exercise of discretion by government officials, including law enforcement agents, in order to safeguard the privacy and security of individuals against arbitrary invasions...." (internal quotation marks omitted)).
54. Kerr, supra note 6, at 958.
55. Id. at 959.
56. See SLOBOGIN, supra note 1, at 112 (indicating an MIR of 35 for covert video surveillance and an MIR of 68 for a patdown);
57. id. at 184 (showing MIRs of 32.4, 34.1, and 38.5 for various types of data mining and an MIR of 74.6 for a car search).
58. See GEORGE ORWELL, 1984, at 5 (Signet Classics 1981) (1949) (describing an omnipresent government-monitored "telescreen").
59. Kerr, supra note 6, at 960 (calling some media depictions of surveillance techniques "comically incorrect").
60. See SLOBOGIN, supra note 1, at 112 (showing an MIR of 42 for covert camera surveillance, of 51 for search of a junkyard, and of 53 for overt camera use); id. at 184 (showing an MIR of 32.4 for data mining of passenger lists, 71.5 for a patdown, and 74.1 for data mining of phone records).
61. Kerr, supra note 6, at 959.
62. See Florida v. Bostick, 501 U. S. 429, 438 (1991) ("[T]he potential intrusiveness of the officers' conduct must be judged from the viewpoint of an innocent person in [his] position. "
63. (quoting Florida v. Royer, 460 U. S. 491, 519 n. 4 (1983) (Blackmun, J., dissenting))).
64. Kerr, supra note 6, at 961.
65. Id. at 960.
66. SLOBOGIN, supra note 1, at 33.
67. Slobogin & Schumacher, supra note 30, at 759. More specifically, we found that when a scenario both described the target as the survey participant (rather than some third party) and described the evidence being sought (as opposed to not mentioning any evidence), the combined mean for all fifty scenarios was fifteen points lower (48.93 compared to 63.19).
68. Id. Dr. Schumacher is a Ph. D. psychologist who assisted in the empirical analysis.
69. Id. at 764 tbl.4;
70. see also id. at 767 (describing "dangerousness theory" of intrusiveness, to the effect that if the subject believes the target of the search is dangerous, the perceived intrusiveness of a police action will be lower).
71. Id. at 764, 767-68 (finding consistency between the scenarios at the top and bottom of the rankings, and significant inconsistencies only with respect to ten scenarios, perhaps explainable by the extent to which subjects viewed the target of the search to be dangerous);
72. see also Jeremy A. Blumenthal et al., The Multiple Dimensions of Privacy: Testing Lay "Expectations of Privacy", 11 U. PA. J. CONST. L. 331, 349-50 (2009) (finding "high correlations between overall intrusiveness ratings of stimuli in samples with and without context"-context meaning a description of what the police were looking for-but noting variations upon closer examination of particular contexts).
73. Slobogin & Schumacher, supra note 30, at 762-63 tbl.3 (showing, across all conditions, a pat-down rated as 19, 21, 27, and 9; perusal of bank records rated as 36, 40, 38, and 36; roadblocks rated as 9, 16, 15, and 13; and viewing a backyard with binoculars rated as 34, 33, 35, and 29).
74. Kerr, supra note 6, at 964.
75. Using a more sophisticated methodology, Professors Blumenthal, Adya, and Mogle conducted a study that relied on the same scenarios used in our study and found that their "[data] are quite consistent with [Slobogin and Schumacher's] results; each of our samples correlated highly with their overall data."
76. See Blumenthal et al., supra note 53, at 345. However, they also found that context affected their results.
77. See id. at 348-51.
78. Swire, supra note 7, at 757.
79. Much of the empirical information could be provided in briefs. See John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. PA. L. REV. 477, 496 (1986) ("If the research is more analogous to law than to fact, the parties should present the research to the court in the same manner that they would offer legal precedents, that is, in written briefs rather than by oral testimony."). Moreover, indeterminate empirical results are not necessarily irrelevant. as Professor Faigman has noted, "[t]he empirical uncertainties of factual statements are as important as the statements themselves and should be part of the legal calculus." Faigman, supra note 9, at 162.
80. SLOBOGIN, supra note 1, at 114.
81. For instance, the roadblock scenario received an MIR of 46 and a body cavity search at the border an MIR of 90 in the 1993 study, compared to an MIR of 35 for the roadblock and a 75 for the body cavity search in the 2002 study.
82. Compare Slobogin & Schumacher, supra note 30, at 738-39, with
83. SLOBOGIN, supra note 1, at 112.
84. Compare SLOBOGIN, supra note 1, at 112, 184, with
85. Slobogin & Schumacher, supra note 30, at 738-39 (showing pre-9/11 and post-9/11 scenario hierarchies that are very similar).
86. See, e.g., Janet Kornblum, Privacy: That's Old-School: Internet Generation Views Openness in a New Way, USA Today, Oct. 23, 2007, at D1 (noting that people today have less concern about privacy in some respects because of familiarity with new technologies).
87. SLOBOGIN, supra note 1, at 114. Certainly the Court's views on intrusiveness, and probably society's views as well, have changed in the past, in both directions.
88. Compare Katz v. United States, 389 U. S. 347, 353 (1967) (declaring bugging of a phone booth a search), with
89. Olmstead v. United States, 277 U. S. 438, 466 (1928) (declaring wiretapping of a phone not a search);
90. compare Warden v. Hayden, 387 U. S. 294, 301-02 (1967) (holding seizure of mere evidence permissible), with
91. Gouled v. United States, 255 U. S. 298, 309 (1921) (holding seizure of mere evidence not permissible);
92. compare Hale v. Henkel, 201 U. S. 43 (1906) (permitting subpoena for business papers), with
93. Boyd v. United States, 116 U. S. 616 (1886) (prohibiting seizure of business papers).
94. See Kerr, supra note 6, at 960-61.
95. Id. at 961.
96. Id. at 961 n. 14.
97. At one point, Professor Kerr states that my approach would require "a dramatic revision of current doctrine" and then asserts that "[i]t is difficult to justify a revision of current doctrine on the ground that some aspects of current doctrine require it."
98. Id. at 961. I have to confess I do not understand this argument. First, by investigating society's expectations of privacy, I am adhering to Katz's original formulation.
99. See SLOBOGIN, supra note 1, at 68-69 (quoting Court language that confirms this formulation). Although I am obviously arguing for a different interpretation of that formulation than subsequent Court opinions have given it, scholars routinely argue that the Court is misconstruing its own doctrine, whether the issue is Miranda, equal protection, or prior restraint. I am not clear why that is "difficult."
100. See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U. S. 624, 638 (1943) ("One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.").
101. Robert C. Post, Three Concepts of Privacy, 89 GEO. L. J. 2087, 2092 (2001).
102. Id. at 2094.
103. Kerr, supra note 6, at 961 n. 14 ("[T]he Court's applications [of the expectation of privacy test] generally rely on normative assessments of the costs and benefits of subjecting a legal technique to constitutional regulation. ").
104. Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV. 503, 507-19 (2007). Kerr also identifies a fourth model, the "policy model", wherein "[j]udges must consider the consequences of regulating a particular type of government activity, weigh privacy and security interests, and opt for the better rule."
105. Id. at 519. This way of looking at the Katz test conflates justification with intrusion and so is not discussed here, but rather is addressed (implicitly) in Part III.
106. Id. at 506.
107. Id.; see supra note 26-28 and accompanying text.
108. Kerr, supra note 72, at 506.
109. See supra note 25 and accompanying text.
110. Kerr, supra note 72, at 534.
111. Id. at 544.
112. Id.
113. Cf. United States v. Miller, 425 U. S. 435, 443 (1976) ("The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government... even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.").
114. Cf. California v. Ciraolo, 476 U. S. 207, 223 (1986) (Powell, J., dissenting) ("[T]he actual risk to privacy from commercial or pleasure aircraft is virtually nonexistent.").
115. Indeed, my research suggests that the probabilistic model coincides with the notion of how invasive an investigative technique is perceived to be. For instance, the fact that my survey participants gave an MIR of 80.3 to the perusal of bank records scenario
116. SLOBOGIN, supra note 1, at 184, and an MIR of 50 to helicopter overflights of backyards
117. id. at 112, can be read to indicate that they do not assume such records are routinely made available to third parties or that such flights are common.
118. See Kerr, supra note 72, at 523 (stating that the private-facts model "requires a normative assessment of the 'privateness' of the information").
119. FAIGMAN, supra note 9, at 1-3 (speaking of the "pervasiveness of factual issues in constitutional cases").
120. Id. at xii.
121. Id. at 15.
122. Kerr, supra note 6, at 964-66.
123. Id. at 965-66.
124. Id. at 965.
125. Id. at 966.
126. See, e.g., State v. Reid, 945 A.2d 26, 33 (N. J. 2008) (noting that users of the Web "have reason to expect that their actions are confidential");
127. State v. McAllister, 875 A.2d 866, 874 (N. J. 2005) ("[B]ank customers voluntarily provide their information to banks, but they do so with the understanding that it will remain confidential.");
128. State v. Hunt, 450 A.2d 952, 956 (N. J. 1982) ("From the viewpoint of the customer, all the information which he furnishes with respect to a particular call is private.").
129. See SLOBOGIN, supra note 1, at 184 (indicating a high MIR for transaction records); see also infra note 95 and accompanying text.
130. See Reid, 945 A.2d at 35-36.
131. See In re Grand Jury Subpoena, 401 A.2d 258, 259 (N. J. Super. Ct. App. Div. 1979) (per curiam)
132. (quoting In re Grand Jury Subpoenas, 391 F. Supp. 991, 995 (D. R. I. 1975)).
133. See SLOBOGIN, supra note 1, at 184 (indicating an MIR of 80.3 for bank records, 74.1 for phone records, and 57.5 for electricity records compared to an MIR of 71.5 for a pat-down and 74.6 for search of a car).
134. See Kerr, supra note 6, at 951.
135. See supra note 37.
136. Reid, 945 A.2d at 31;
137. see also State v. Domicz, 907 A.2d 395, 404 (N. J. 2006) (requiring a subpoena to obtain utility records).
138. Reid, 945 A.2d at 36.
139. Id.
140. Cf. Joëlle Anne Moreno, Beyond the Polemic Against Junk Science: Navigating the Oceans that Divide Science and Law with Justice Breyer at the Helm, 81 B. U. L. REV. 1033, 1081 (2001) ("Legal scholars and practitioners... are often confounded by the principles of statistical analysis, risk assessment, probabilistic attribution, and attendant mathematical jargon. ").
141. FAIGMAN, supra note 9, at 16 ("An institution that surrenders its authority to define the empirical world loses a considerable amount of its power.").
142. Id. at 18.
143. See, e.g., Stanford v. Kentucky, 492 U. S. 361, 379 (1989) (Scalia, J.)
144. abrogated by Roper v. Simmons, 543 U. S. 551 (2005) (stating, while interpreting the Eighth Amendment, that "[t]o say, as the dissent says, that 'it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty, '... not on the basis of what we perceive the Eighth Amendment originally prohibited, or on the basis of what we perceive the society through its democratic processes now overwhelmingly disapproves, but on the basis of what we think 'proportionate' and 'measurably contributory to acceptable goals of punishment'-to say and mean that, is to replace judges of the law with a committee of philosopher-kings"
145. (quoting id. at 391 (Brennan, J., dissenting))).
146. FAIGMAN, supra note 9, at 181 ("Enlightened constitutional practice can be neither solely normative nor exclusively empirical.").
147. SLOBOGIN, supra note 1, at 114.
148. For elaboration of this concept, see id. at 37-39.
149. Kerr, supra note 6, at 962.
150. Id.
151. Id.
152. See infra text accompanying notes 132-37.
153. See Kerr, supra note 6, at 962
154. (citing RICHARD VAN DUIZEND ET AL., THE SEARCH WARRANT PROCESS: PRECONCEPTIONS, PERCEPTIONS, AND PRACTICES 138 tbl. 6-2 (1983)).
155. Id.
156. See, e.g., Terry v. Ohio, 392 U. S. 1, 27 (1968) ("[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch', but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.").
157. See, e.g., New Jersey v. T. L. O., 469 U. S. 325, 341-42 (1985) ("Under ordinary circumstances, a search... will be 'justified at its inception' when there are reasonable grounds for suspecting that the search will turn up evidence that the [individual] has violated or is violating... the law....").
158. But see Max Minzner, Putting Probability Back into Probable Cause, 87 TEX. L. REV. 913, 915 (2009) (arguing that success rates of individual officers ought to be factored into the ex ante cause determination).
159. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U. S. 646, 662-63 (1995) (describing significant drug activity among student athletes);
160. Skinner v. Ry. Labor Executives' Ass'n, 489 U. S. 602, 608 (1989) (recounting that a large number of train accidents and safety incidents over an eight-year period were caused by drug- or alcohol-impaired employees).
161. SLOBOGIN, supra note 1, at 39-44 (discussing levels of justification).
162. See, e.g., Bd. of Educ. v. Earls, 536 U. S. 822, 836 (2002) ("We reject the Court of Appeals' novel test that 'any district seeking to impose a random suspicionless drug testing policy as a condition to participation in a school activity must demonstrate that there is some identifiable drug abuse problem among a sufficient number of those subject to the testing, such that testing that group of students will actually redress its drug problem.'");
163. Mich. Dep't of State Police v. Sitz, 496 U. S. 444, 453-54 (1990) ("[T]he choice among such reasonable alternatives remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers.").
164. Coolidge v. New Hampshire, 403 U. S. 443, 455 (1971) ("In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law [requiring probable cause for most searches and seizures] and the values that it represents may appear unrealistic or 'extravagant' to some. But the values were those of the authors of our fundamental constitutional concepts.").
165. Kerr, supra note 6, at 962.
166. Id. at 963.
167. See supra text accompanying notes 1-4.
168. Kerr, supra note 6, at 962-63 (elaborating on this example).
169. Id. at 963.
170. See id. at 963 n. 17.
171. But see SLOBOGIN, supra note 1, at 26-28, 194, 293 n. 99 (elaborating on the danger exception).
172. See SLOBOGIN, supra note 1, at 193-95 (discussing the exception in the context of terrorism).
173. See supra text accompanying notes 13-18 (explaining the balance between justification and intrusion).
174. Terry v. Ohio, 392 U. S. 1, 26-27 (1968) ("[A] perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime.").
175. SLOBOGIN, supra note 1, at 194 ("[C]onsistent with the danger exception described in chapter 2, the showing usually required under proportionality analysis could be relaxed when the government can demonstrate that the data mining is necessary to detect a significant imminent threat [such as terrorist activity].").
176. Swire, supra note 7, at 759 ("Slobogin's discussion of criminal procedure law does not address the intersection with the growing phenomenon of national security searches and seizures.").
177. Kerr, supra note 6, at 962-63.
178. Swire, supra note 7, at 760-63 ("When Slobogin omits reference to the large literature on the Proportionality Principle, he foregoes a major persuasive argument for his proposed reworking of the Fourth Amendment."). The statement in the text is not meant to deny the validity of Swire's general point that greater attention to proportionality literature would have improved the book.
179. See, e.g., Vicki C. Jackson, Being Proportional About Proportionality, 21 CONST. COMMENT. 803, 807 (2004) (noting that one version of proportionality analysis "turns on an evaluation of the importance of the objective measured against its infringing effects on protected rights").
180. When the search or seizure is of a group, rather than of an individual suspect, the Court's analysis is somewhat different. See infra text accompanying notes 147-57.
181. Mincey v. Arizona, 537 U. S. 385, 394 (1978).
182. Note, however, that there is some evidence to suggest that where government efforts are viewed as facilitative rather than adversarial, as with health and safety inspections, entries into the home are viewed as less intrusive.
183. See Slobogin & Schumacher, supra note 30, at 768 (describing evidence from the intrusiveness study suggesting that "when the motivation of the searchers seems beneficent, the sense of intrusion is lessened").
184. Kerr, supra note 6, at 951.
185. Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 MICH. L. REV. 801, 806 (2004) ("I contend that the legislative branch rather than the judiciary should create the primary investigative rules when technology is changing.").
186. SLOBOGIN, supra note 1, at 75-78 (discussing a legislative approach to surveillance of the home);
187. id. at 118-19 (discussing "constitutional roadmapping" in which courts lay out basic principles with legislatures filling in the details); id. at 201-03 (discussing Kerr's preference for legislative solutions and concluding that, while the courts must provide guidelines, "more detailed rule-making along the lines suggested here might best be left to Congress").
188. Orin S. Kerr, The Case for the Third Party Doctrine, 107 MICH. L. REV. 561, 596-600 (2009).
189. Id. at 596-97 (describing statutory substitutes and declaring it a "good thing" that they provide less protection than a warrant).
190. See SLOBOGIN, supra note 1, at 169-80 (describing current subpoenalike mechanisms and the minimal extent to which third parties contest them). Professor Kerr gives three other reasons for his stance in favor of the Court's current third party doctrine. First, he asserts that regulating transaction surveillance would unfairly disadvantage the government, which before the advent of the phone, the Internet, and other technology could relatively easily figure out with whom we conducted our transactions. Kerr, supra note 141, at 573-81. Of course technology has also vastly increased the government's ability to acquire transactional information; allowing government to acquire this information without justification would lead to a serious imbalance in the other direction. Second, Professor Kerr argues that we consent to revelation of our transactional information when we give it to institutional third parties.
191. Id. at 588-90. That restatement of the Court's assumption-of-risk rationale blinks reality and fails to distinguish between giving information to human third parties, who have an autonomy interest in disclosing information, and institutional third parties, which do not.
192. See SLOBOGIN, supra note 1, at 156-60. Third, Professor Kerr argues that any alternative to the Court's third party doctrine would disproportionately harm law enforcement because it will be too onerous or confusing.
193. Kerr, supra note 141, at 581-86. I agree with him to the extent we impose the warrant-probable cause template on such searches. One of the advantages of the proportionality approach is that it provides more flexibility, because it permits less intrusive searches and seizures, conducted at early stages of an investigation, on a lesser showing. Professor Kerr's statement that "intermediate standards" are "not possible under the Fourth Amendment, "
194. id. at 597, is simply not true.
195. See supra text accompanying notes 23-26 (criticizing the limited protection under Fourth Amendment precedent).
196. See SLOBOGIN, supra note 1, at 177-79 (describing abuses of National Security Letters). Cindy Cohn has said that National Security Letters should simply be called "letters" because they are often used to obtain information having nothing to do with national security. Cindy Cohn, Legal Dir., Elec. Frontier Found., Panel at the DePaul Law School Conference: Cyberlaw 2.0: Legal Challenges of an Evolving Internet (Oct. 15, 2009).
197. Worf, supra note 10, at 119-31 (arguing for deference to legislatures in this area).
198. See SLOBOGIN, supra note 1, at 43.
199. Id.
200. Christopher Slobogin, Government Dragnets in a Technological Age, LAW & CONTEMP. PROBS. (forthcoming 2010) (manuscript at 24-28, on file with author).
201. Id. Note also that the primary method of avoiding overdelegation is to ensure the program applies to all constituents, powerful and disadvantaged alike, which should have an inhibiting effect on casual passage of dragnet programs.
202. See Slobogin, Data Mining, supra note 30, at 317-38 (describing the near unanimous congressional vote, only two years after 9/11, scaling back the Department of Defense's Total Information Awareness program).
203. Slobogin, supra note 149 (manuscript at 30-37).
204. Chandler v. Miller, 520 U. S. 305, 308 (1997) (striking down a Georgia statute that required drug testing of all political candidates).
205. See, e.g., Ferguson v. City of Charleston, 532 U. S. 67, 76 (2001) (drugtesting program established by local police);
206. City of Indianapolis v. Edmond, 531 U. S. 32, 36 (2000) (roadblock policy promulgated by the local police department);
207. Mich. Dep't of State Police v. Sitz, 496 U. S. 444, 447 (1990) (same);
208. Skinner v. Ry. Labor Executives' Ass'n, 489 U. S. 602, 608-13 (1989) (drugtesting policy promulgated under statute permitting Secretary of Transportation to "prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety").
209. See Slobogin, supra note 149 (manuscript at 30-37).
210. Id.
211. See, e.g., New Jersey v. T. L. O., 469 U. S. 325, 337 (1985) (noting that Fourth Amendment analysis requires balancing: "On one side of the balance are arrayed the individual's legitimate expectations of privacy and personal security; on the other, the government's need for effective methods to deal with breaches of public order.").
212. As Professor Faigman notes, "[w]hile the judiciary may not be as well designed institutionally as the legislative branch to gather... data, courts are especially well designed to evaluate them."
213. FAIGMAN, supra note 9, at 133.
214. Kerr, supra note 6, at 951, 964 (referring to a future, liberal Court).
215. See, e.g., Nat'l Treasury Employees Union v. Von Raab, 489 U. S. 656, 681 (1989) (Scalia, J., dissenting) ("The Court's opinion in the present case, however, will be searched in vain for real evidence of a real problem that will be solved by urine testing of Customs Service employees.").
216. Slobogin & Schumacher, supra note 30, at 772-74 ("[C]ontrary to
217. SLOBOGIN, supra note 1, at 210.
218. Id. at 218.