Cost-Benefit Analysis and the Digital Fourth Amendment

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Notes

[For helpful comments I thank Bill Heffernan and Ric Simmons.]

Notes

1 See Kerr, “Equilibrium-Adjustment Theory.”

2 See, e.g., Kyllo v. United States, 533 U.S. 27, 34–35 (2001), which holds that a warrant is required for use of a thermal imaging device.

3 See, e.g., Carroll v. United States, 267 U.S. 132, 136 (1925), which permits the warrantless search of an automobile.

4 See Katz v. United States, 389 U.S. 347, 351 (1967). Katz overruled an earlier decision, Olmstead v. United States, in which the Supreme Court held that a wiretap of a private telephone conversation did not fall under the Fourth Amendment because the wiretaps were conducted “without trespass upon any property of the defendants.” 277 U.S. 438, 457 (1928).

5 See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).

6 See Cohen, “Transcendental Nonsense.”

7 $S$ plays the role of $L$, $E$ of $P$, and $P_C$ of $B$.

8 Simmons actually recognizes two kinds of surveillance costs. The first is “administrative” (resource) costs expended by the government. Simmons excludes these costs when analyzing when surveillance is justified under the Fourth Amendment because “the administrative cost is already internalized by the law enforcement agency” (32).

The second cost of surveillance, the “privacy cost,” incorporates more than just the cost of the surveillance to the individual target’s privacy. It also includes the costs that surveillance poses to liberty and democracy (20). See also Heffernan, “Fourth Amendment Privacy Interest,” 30, where Heffernan describes the pluralism of values that the Supreme Court has recognized in Fourth Amendment cases.

9 Simmons writes this as $P_C\times X=S\times E$ (32), but I found this way of expressing the relationship to be confusing as it obscures the fact that $X$ is the dependent variable.

10 This raises an important point regarding Simmons’s theory of the Fourth Amendment: it does not attempt to faithfully incorporate all Fourth Amendment doctrine, but instead to suggest areas for (sometimes dramatic) reform. For example, Simmons recognizes that the “Supreme Court has rejected the idea that the severity of the crime should affect the evaluation of the surveillance, generally holding that one standard should apply across the board to every criminal investigation” (31).

11 See Illinois v. Caballes, 543 U.S. 405, 408 (2005), which cites United States. v. Jacobsen, 466 U.S. 109, 123 (1984).

12 Whether this means that the Fourth Amendment applies but is always satisfied or that it doesn’t apply at all is a question of (possible) theoretical interest but little practical importance.

13 See, e.g., Zittrain, Future of the Internet, 110–23; Hartzog et al., “Inefficiently Automated Law Enforcement,” 1791–92.

14 This is the converse of a point that William Stuntz made several decades ago, in the context of the War on Drugs: “Fourth Amendment law makes drug investigations somewhat costlier, because it forbids most sweeps, blanket searches, and suspicionless street stops. This may have played some part in legislatures’ decisions to ratchet up drug sentences over the past generation: The costlier it is to catch offenders, the more important it is to punish them severely when caught.” “The Uneasy Relationship,” 51.

15 Of course that still leaves programs that pass CBA but are problematic in other ways. For example, consider a version of New York City’s infamous “stop and frisk” program, but significantly lowered crime and had a very high hit rate, albeit at the cost of explicit racial profiling and targeting. Such a program might be CBA justified (even if one takes into account the psychological and dignitary harms of racial profiling) even as it violated legal and moral commitments to racial equality. In a case like this one might argue that the constitutional provision at issue is not the Fourth Amendment but rather the Fourteenth Amendment (48). Simmons expands on this point in a forthcoming article, developing a set of criteria “as to how courts should apply the Equal Protection Clause when evaluating the use of race in criminal investigations.” “Race and Reasonable Suspicion,” 5.

16 See, e.g., Rozenshtein, “Fourth Amendment Reasonableness,” 947; Rozenshtein, “Wicked Crypto,” 1202–04.

17 See, e.g., Slobogin and Schumacher, “Reasonable Expectations of Privacy.”

18 See transcript of Oral Argument at 40, Gill v. Whitford, 138 S. Ct. 1916 (2018) (No. 16-1161), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1161_mjn0.pdf. The Chief Justice’s remarks have been widely criticized as a sign of anti-intellectualism and innumeracy. See, e.g., Kammer, “Anti-Intellectualism”: “Roberts’ questioning exhibits a rejection of sociological expertise as a basis for producing useful knowledge regarding social institutions” (290).

But there’s a more charitable way to interpret the Chief Justice’s point. The question is not whether empirical analysis is a legitimate source of knowledge—when done well it obviously is—but rather whether the use of sophisticated methodology harms the courts’ legitimacy because it cannot be adequately explained or defended by judges themselves. What makes sophisticated empirical work “gobbledygook” is not that it’s wrong, but that it’s inscrutable except to social scientists. And when it comes to the perceived legitimacy of judicial decision-making, that may be just as damaging. A notable example of this dynamic is Brown’s (in)famous footnote 11, which cited social science evidence indicating segregation’s harm to Black children. See Brown v. Bd. of Ed. of Topeka, 347 U.S. 483, 494 n.11 (1954). The Court’s use of social-science data was immediately controversial, leading to accusations—even from those who were generally sympathetic to the outcome of the case—that the decision was not grounded in law. See Mody, “Brown Footnote Eleven,” which describes criticisms of Brown’s use of social science from Edmond Cahn and Charles Black.

19 I survey this literature in Rozenshtein, “Wicked Crypto.”

20 See Minnesota v. Carter, 525 U.S. 83, 97 (1998) (Scalia, J., concurring) (internal quotation marks omitted).

21 See, e.g., Kerr, “The Fourth Amendment and New Technologies.”

22 Crespo, “Systemic Facts,” 2059.

23 See, e.g., Renan, “Fourth Amendment as Administrative Governance,” which describes “[d]eference as a governance tool“ (1082).

24 Rozenshtein, “Fourth Amendment Reasonableness,” 956.

25 See generally Geistfeld, “Tort Law.”