Surveillance and the Constitution

Abstract

My focus will be on the extent to which the Constitution limits government surveillance activities. The details of regulation should be statutory, but the basis for that statutory regulation must be founded on constitutional principles to ensure that it cannot be legislatively nullified during the next moral panic, the next terrorist attack, or not to put too fine a point on it, the next time a Dick Cheney comes into power. The primary source of that constitutional regulation is the Fourth Amendment. The Fourth Amendment prohibits unreasonable searches and seizures and requires that warrants for searches and seizures be based on probable cause and describe the object of the search. This is the amendment that places limitations on government efforts to conduct searches of homes and cars, and make stops and arrests. Although this amendment is the fourth in line, it has been called the most important part of the Bill of Rights, even more important than the First Amendment's guarantee of free speech, association, and press, because without security from government intrusions and monitoring, speech and association are chilled and perhaps even silenced, and sources for the media can be choked off.