Dan Solove: Fourth Amendment Pragmatism
George Washington University Law Professor and Concurring Opinions creator Dan Solove has published an article about the Fourth Amendment in the Boston College Law Review. The abstract of “Fourth Amendment Pragmatism“:
In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering.
There are two central questions in Fourth Amendment analysis: (1) The Coverage Question—Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question—How should the Fourth Amendment regulate this form of government information gathering? The Coverage Question should be easy to answer: The Fourth Amendment should regulate whenever government information gathering creates problems of reasonable significance. Such a scope of coverage would be broad, and the attention wasted on the Coverage Question would be shifted to the Procedure Question. This pragmatic approach to the Fourth Amendment is consistent with its text and will make Fourth Amendment law coherent and comprehensive.
In the introduction, Solove explains:
The reasonable expectation of privacy test has led to a contentious jurisprudence, riddled with inconsistency and incoherence. Debates rage over whether particular government information gathering activities invade “privacy.” I have been a frequent participant in these discussions, often criticizing judicial decisions under the Fourth Amendment as lacking a progressive understanding of privacy in light of modern technology. [...]
For a long time, I believed that with the appropriate understanding of privacy—one that is well-adapted to modern technology, nimble and nuanced, forward-looking and sophisticated—Fourth Amendment jurisprudence could be rehabilitated. I now realize I was wrong.
The entire debate over reasonable expectations of privacy is futile, for it is not focused on the right question. [...]
[We] have often been focusing on the wrong question when considering Fourth Amendment protection—whether there is an invasion of privacy. Fourth Amendment coverage often bears little relation to the problems caused by government investigative activities. It bears little relation to whether it is best to have judicial oversight of law enforcement activity, what that oversight should consist of, how much limitation we want to impose on various government information gathering activities, and how we should guard against abuses of power.
In this essay, I argue for a more pragmatic approach to the Fourth Amendment.
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