In recent times, we’ve seen a lot of debate about eroding the 4th amendment protections against surveillance in the interests of stopping terrorists and other criminals.
It’s gotten so prevalent that it seems the debate has become only about how much to weaken the 4th. Nobody ever suggests the other direction, strengthening it.
Let’s dip back into historical perspective, and think of the late 18th century, when it was written. In those days surveillance was a simple thing to understand. It required human beings who were physically present to watch you, or search your house. The closest thing to remote surveillance was the idea of opening somebody’s mail while in transit.
More importantly, it didn’t scale. To watch 100 people you needed 100 teams. You could watch the town square but otherwise large scale surveillance simply wasn’t physically possible.
And yet, even with this limited set of things to worry about, the signers of the bill of rights felt they had plenty to fear. If you could describe today’s techniques of surveillance to them — where we can observe people from a distance, plant bugs in their homes, see them through walls, detect sounds from windows and read electronic emissions; where we can listen to a person by keying in a number at our desk, and where, most shockingly of all, through computers observe the activities of effectively everybody — they would have gasped in shock.
Their reaction would not have been to say, “We had not realized there would be all these new useful tools of surveillance. We had better open up exceptions in the 4th to be sure they can be used effectively.” I think they would have instead worked to strengthen the 4th to prevent these new tools.
After all, they were revolutionaries. Had the King been able to data-mine the call records of colonial America, no doubt he would have discovered all those seditious founding fathers and rounded them up quickly.
So I ask, as the surveillance tools become stronger, doesn’t it make sense that the protection from them should become stronger, to retain balance? Society can still benefit from better police technology by making it more precise, rather than more broad. This is not saying give up what technology can do to protect us from crime, but rather to channel it in the right direction.
Because the tools are going to get even better and “better.” The balance is going to continue to shift until there’s very little of the original design left.