Time for the Court to Become "Intimate" with Surveillance Technology

Abstract

The Fourth Amendment protects people’s reasonable expectations of privacy when there is an actual, subjective expectation of privacy and when society recognizes that expectation as reasonable. Therefore, Fourth Amendment protections should evolve over time according to society’s beliefs about which areas of an individual’s life should be protected. Law enforcement has seized on the rapid growth in technology over the past two decades to expand its surveillance capabilities. Fourth Amendment protections, however, have not kept pace with technology. Consequently, federal courts have used outdated precedent that addresses archaic forms of surveillance technology when analyzing the constitutionality of law enforcement’s use of significantly more sophisticated surveillance technology. Some states have expressed dissatisfaction with this outdated precedent and have relied on their own state constitutions to provide citizens with increased protection. Acknowledging a change in what society recognizes as a reasonable expectation of privacy, the U.S. Court of Appeals for the D.C. Circuit, in United States v. Maynard, ruled that prolonged use of Global Positioning System (GPS) surveillance technology deserves Fourth Amendment protections because GPS creates an “intimate picture.” The D.C. Circuit’s “intimate picture” test ought to be used by other courts to appropriately protect individuals from ever-changing forms of surveillance technology.