Authored Articles & Publications Jun 29, 2016

Public Safety Technologies: Big Brother and the Fourth Amendment

BB&K Attorney Gary Schons Examines the Intersection of Technology, Law and Public Safety for Municipal Lawyer Magazine

By Gary Schons

Technological advancements in imaging, activity and sound detection, global positioning, data collection and mining, and biometrics are rapidly being adapted to law enforcement, enhancing public safety and facilitating criminal prosecutions. In parallel with these developments, the near-universal use of portable electronic devices is exposing ever more intimate personal details to monitoring and interception. At the crossroads of these technologies are concerns for privacy, civil liberties, the limits of government power, and the contours of ordered liberty in the 21st Century.

The principal restraint on governmental intrusions into “privacy” is the Fourth Amendment prohibition against unreasonable searches and seizures. Since Katz a “search” has been recognized as a “prying into a private place,” and what is “private” has been based on a person’s subjective expectation of privacy. Recent technological advances have contorted the notion of “prying” and “privacy” at both ends of the spectrum. For example, armed with infrared detection devices, police can detect heat radiating from a home, indicating ongoing narcotics production. Is this “prying into a private place,” or merely detecting heat emanating from a building?

On the other hand, courts have generally found that police are entitled to search an arrestee’s wallet or purse without a warrant. But what about searching a cellphone? Once this was permissible, but no longer. As will be discussed, Fourth Amendment jurisprudence is in a constant race to keep up with advances in police-deployed technology, and some scholars believe that the Fourth Amendment alone cannot protect privacy from these new technologies.

Click here to read the entire article, published in the July/August 2016 issue of Municipal Lawyer, a bimonthly magazine offered by the International Municipal Lawyers Association.

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