Fourth Amendment Pragmatism

William James

I just posted my new forthcoming essay on SSRN called Fourth Amendment Pragmatism, 51 Boston College Law Review __ (forthcoming 2010).   Here’s the abstract:

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.

Here’s a brief excerpt from the introduction:

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. The debate is reminiscent of the philosophical dispute over a squirrel that William James relates in his book, Pragmatism:

The corpus of the dispute was a squirrel—a live squirrel supposed to be clinging to one side of a tree-trunk; while over against the tree’s opposite side a human being was imagined to stand. This human witness tries to get sight of the squirrel by moving rapidly round the tree, but no matter how fast he goes, the squirrel moves as fast in the opposite direction, and always keeps the tree between himself and the man, so that never a glimpse of him is caught. The resultant metaphysical problem now is this: Does the man go round the squirrel or not? He goes round the tree, sure enough, and the squirrel is on the tree; but does he go round the squirrel?

James told the others that the debate was in vain—it all boiled down to what “going round” the squirrel meant. If “going round” meant passing the squirrel in all four directions, then the man went around the squirrel. But if going around meant being on all four sides of the squirrel, then “the man fails to go round him, for by the compensating movements the squirrel makes, he keeps his belly turned towards the man all the time, and his back turned away.” We should avoid getting bogged down in such fruitless debates, James explains, as it is more productive to focus on “practical consequences.”

Just as the scholars futilely debated whether the man went around the squirrel, we, too, 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. There are two central questions in Fourth Amendment analysis:

(1) Does the Fourth Amendment provide protection against a particular form of government information gathering?

(2) How should the Fourth Amendment regulate this form of government information gathering?

I will refer to Question 1 as “the Coverage Question” and Question 2 as “the Procedure Question.”

The Coverage Question has preoccupied Fourth Amendment law and has led to a complicated morass of doctrines and theories. We should sidestep the contentious debate about expectations of privacy—or about any other specific value as a trigger for Fourth Amendment protection. Instead, whenever a particular government information gathering activity creates problems of reasonable significance, the Fourth Amendment should require regulation and over-sight. These problems not only involve invasion of privacy, but also chilling of free speech, free association, freedom of belief, and consumption of ideas. They can involve inadequately-constrained government power, lack of accountability of law enforcement officials, and excessive police discretion, among other things. The Fourth Amendment should provide coverage whenever any of these problems might occur.

Such an approach would result in Fourth Amendment coverage that is comprehensive rather than haphazard. It would be consistent with the Fourth Amendment’s language, which speaks broadly in terms of “unreasonable searches.” The Coverage Question thus should be easy—the Fourth Amendment should provide protection whenever a problem of reasonable significance can be identified with a particular form of government information gathering.

Read the full essay here.

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7 Responses

  1. SuperSkeptic says:

    Professor Solove,

    I read your article and have been considering this issue quite a bit over the past few days, since we discussed it over at Volokh after Prof. Kerr was on CSPAN. Your article has helped me clarify many of my thoughts – thank you.

    Overall, I agree that there needs to be a paradigm shift of some sort; however, I wasn’t quite prepared to relegate the Katz test to the dustbin of history. I will put some more thought into whether it must go – especially all at once, if we have no concrete replacement. As of now, I remain somewhat skeptical of that. (Admittedly, I was clinging to privacy as a central tenet for court protection, but agree that the concerns are much broader.)

    Secondly, and relatedly, I was somewhat taken aback by your brazen atextualism. Although it may be quite true in many ways that “[w]e are so far beyond the text of the Fourth Amendment—and beyond the text of most of the Constitution,” I am nevertheless doubtful that this is a trend we should wholeheartedly embrace and thus reluctant to treat the text so cavalierly.

    With that in mind, I think one way to maintain a greater semblance of textual fidelity (as well as attain the requisite flexibility sought) could be had by a different approach to “reasonableness” based upon “probable cause”: Rather than requiring “probable cause” to be based upon whether ” ‘…an offense has been or is being committed‛ or that evidence will be found in the place to be searched,” (Brinegar/you), “probable cause” could be more flexibly based upon whether there is “probable cause” for whatever ends law enforcement seeks to “search” or “seize”. For one example, in the GPS bugging of vehicles context, this approach could allow for judicial oversight of all GPS bugs (absent exigent circumstances, of course) based not upon the the “probable cause” of finding evidence of a crime per se by attaching the GPS, but merely “probable cause” that this suspected drug dealer whose vehicle will be monitored by GPS will be associating at or about this time with this well-known drug-dealer.

    Do you see the flexibility I’m aiming at? If I’m right, then Professor Kerr’s “all or nothing” critique of the Fourth Amendment’s warrant requirement has much less weight, and our paradigm shift more force for its textual fidelity. The biggest downside I see (at this point), is that it could lead to a much lower standard of what constitutes “probable cause” in other contexts. Although, it’s all technology specific.

    That’s my two sense.

  2. SuperSkeptic says:

    whoops! ha cents.

  3. Dissent says:

    Well, Dan, once again you’ve given everyone a lot to think about. I have two questions for you, though, as I’m not confident that I understand what you’re advocating.

    1. Re: “my approach would determine the applicability of the Fourth Amendment not based on balancing, but based on whether there are problems of reasonable significance caused by government information gathering.”

    Who — or which branch — would or should make the determination as to whether something is a problem of “reasonable significance?” It seems like you are leaning towards the judicial branch as primary determiners, even though you discuss what society wants or desires. Are you giving the primary role here to SCOTUS or to the judiciary in general, or….? Please note that I am available to make such determinations, but that Orin would probably be miserable with the results. 🙂

    2. How do you incorporate the notion that while governmental information gathering from a particular database might not necessarily raise concerns or be a trigger for Fourth Amendment protection under a pragmatic approach, the ability to combine that information with another database might raise problems of “reasonable significance?” Does the determination of “reasonable significance” for requests or activities of the first type get based solely on the information to be gathered or on the potential for combining it with other information, or both?

    Thanks for clarifying.


  4. Daniel Solove says:

    SuperSkeptic — When probable cause can’t be met, under certain circumstances, I would approve a kind of “one next step” approach. The police would justify why a limited next step in the investigation should be authorized, why alternatives wouldn’t be effective, etc. and a court could issue an order to take just that next step. If nothing panned out, that would be all. But if the police progressed in their investigation, they would hopefully have acquired probable cause at this point and would be able to return to the court for a warrant. The order under these circumstances would be quite limited, but it would allow the police to continue an investigation when their momentum was stalled just short of probable cause.

  5. Daniel Solove says:


    1. The courts would articulate the general principles. In situations with no statute addressing the issue, the courts could craft their own rule. But in situations where there was a statute, the courts would evaluate that law in light of whether it satisfied the general principles. The court wouldn’t craft its own rules.

    The problem, as I note in the essay, is that legislatures haven’t really done their jobs. They have failed to establish a comprehensive system of criminal procedure. They have failed to keep the law up-to-date. That’s why the courts were justified in taking over the field of criminal procedure. I’d like to see more legislative criminal procedure protections rather than judicial prophylactic rules. The role of the judiciary is still robust, for the statutes would still have to satisfy general Fourth Amendment principles. But they might satisfy those principles, for example, with different kinds of court orders than warrants.

    2. I would recognize a problem with combining data from different databases and engaging in data mining, as I identify this problem as “aggregation” in my book, Understanding Privacy. Right now, the anemic Privacy Act regulates the use of data by federal agencies, but it is weak and needs an overhaul. And there needs to be a similar law regulating what state governments can do with their data.

  6. Dissent says:

    Thanks for clarifying, Dan. Now I’ll go back and re-read and think some more.

  7. SuperSkeptic says:

    Very interesting. I’ll have to put some more thought into it (and its textual implications), but at first glance your approach doesn’t seem substantially inconsistent with my train of thought. I suppose I would merely characterize the issue as “is there ‘probable cause’ for the ‘next step’?” – which then reduces to “is there probable cause for each step?”. Thanks for the reply, Professor.