The Pinpoint Search

How super-accurate surveillance technology threatens our privacy

Julian Sanchez from the January 2007 issue

(Page 3 of 4)

Storage Devices and Virtual Files

Courts already have started to tackle some of the questions raised by these new technologies, but not consistently enough for us to predict with confidence where they’ll go in the future. In United States v. Runyan (2001), the U.S. Court of Appeals for the 5th Circuit ruled that when a woman who had found a few of her husband’s child porn files turned his digital storage devices over to police, they had already been “searched.” The cops, therefore, didn’t perform any additional search when they did a more comprehensive analysis and found more extensive caches of similar material. But in a 10th Circuit case, United States v. Carey (1999), the appeals court held that a forensic analyst who was lawfully searching a hard drive in the course of a drug investigation did exceed the scope of the warrant when, after accidentally opening a child porn file, he abandoned the search for drug-related material and started digging for more porn.

Kerr characterizes these as “storage device” and “virtual file” approaches, respectively. The former treats a digital storage medium as though it’s a single physical container, like a briefcase or a trunk: Once the lock is lawfully popped, all the contents are subject to observation. With the virtual file approach, a digital storage device is more like a warehouse containing many thousands of individual closed boxes: Police may have the authority to go looking through the warehouse for a few particular containers, but that doesn’t mean they may pry anything open willy-nilly. Even under a “virtual file” approach, the logic of Illinois v. Caballes suggests that a scan for illicit files using something like the Hashkeeper database, which doesn’t technically “open” the file, will not count as a search once police have lawful access to the storage medium.

Kerr has offered his solution, at least in the case of digital searches, in the Harvard Law Review. In a June 2006 article he proposes an “exposure theory” of the Fourth Amendment: Any time computer data or information about that data (such as whether it matches certain search criteria) is exposed to human observation via an output device such as a monitor or printer, those data have been “searched” for Fourth Amendment purposes.

This approach would attenuate, perhaps even eliminate, the “plain view” doctrine in the digital realm. That doctrine holds that any evidence uncovered in the course of a lawful investigation is fair game for police, even when the investigation was initiated for a different purpose—as when, for instance, police smell marijuana or spot a gun during a traffic stop. Such a principle would also, in effect, declare Caballes a dead letter online, since it would shift the legal focus to where investigators looked, rather than the amount of additional physical intrusion or the type of information uncovered.

Some want to see Caballes consigned to the dustbin of jurisprudence offline as well. Marc Rotenberg, executive director of the Electronic Privacy Information Center, proposes rolling back the Caballes exception and hewing to a strict version of the standard the Supreme Court articulated in Kyllo v. United States (see sidebar), under which any information about certain protected spheres, beyond what an unaided human observer could glean, would be regarded as presumptively private. “Your expectation of privacy really has to be measured against what an unassisted police officer might be able to obtain from you,” Rotenberg argues, “not what technology might make possible.” Otherwise, he suggests, that expectation will only grow ever weaker as technology improves.

There’s another advantage to applying the Fourth Amendment’s protections to pinpoint searches: It would create an obstacle to the use of the search power to harass, something that loomed large in the fears of the Founders. For generations, supporters of broad law enforcement powers have claimed that “if you’re not guilty, you have nothing to hide.” But as the Harvard law professor William J. Stuntz has noted, the Fourth Amendment—and the Fifth Amendment, which protects against self-incrimination—were intended not just as abstract procedural checks but as substantive safeguards against criminalizing certain kinds of activity, such as religious and political dissent. It’s harder to prohibit a faith, for example, when police don’t have the power to look through citizens’ papers or burst into their homes without specific evidence of criminality to cite as grounds for a warrant.

If pinpoint searches are not subject to any judicial oversight, law enforcement agencies will have broad discretion over whom to search and how often to search them. There’s ample reason to suspect that such discretion won’t always be exercised equitably. Whites and blacks use illicit drugs at similar rates, for example, but blacks make up nearly half of state prison inmates convicted of drug offenses. It is easy to imagine some politically unpopular person or group subject to frequent pinpoint searches for minor drug infractions, zoning code violations, or whatever other commonplace low-grade statute violations new technologies make it possible to detect.

Should We Learn to Stop Worrying and Love Pinpoint Searches?

Despite such concerns, some civil libertarians greet these new technologies with surprising enthusiasm. Jeffrey Rosen, a law professor at George Washington University and the author of The Unwanted Gaze: The Destruction of Privacy in America (2001), stresses that such searches avoid some of the central problems the Fourth Amendment’s framers worried about. “Privacy people should be unequivocally and unambiguously enthusiastic about technologies that can manage to find illegal activity without intruding on innocent privacy interests,” he argues. “The paradigmatic example of an unreasonable search at the time of the framing of the Constitution was the search of private diaries, because you had to look at a lot of innocent and intimate information in order to find potentially illegal information.” Pinpoint searches may allow the cop who pulls you over for speeding to scan you routinely for drugs or guns. But they may also mean he’ll be less likely to invent a pretext to rifle your glove box, exposing that legal but embarrassing bottle of Viagra. And the subway cop who wants to be sure your backpack doesn’t contain a bomb won’t need to open it up and see what else you’re carrying.

The veteran civil liberties litigator Harvey Silverglate has staked out a position between Rotenberg’s and Rosen’s. He notes that the Fourth Amendment’s clause requiring searches to be “reasonable” is technically separate from the clause outlining the preconditions for a warrant to be issued, and that there are conditions under which courts have ruled warrantless searches to be reasonable. (In addition to the “plain view” exception mentioned earlier, there are exceptions for “exigent circumstance,” as when a cop believes a dealer is about to flush his stash or a kidnapper is on the verge of killing his victim.) So you can concede that pinpoint searches really are searches subject to judicial oversight without ruling out the possibility that some searches, under some circumstances, are “reasonable” even without a warrant. Silverglate believes the law will move away from strict warrant requirements for minimally intrusive technologies, such as hand-held explosive sniffers, that are geared to prevent especially severe crimes, such as terrorist attacks. “The courts,” he predicts, “are going to say that if some germ or atomic weapon could kill thousands of people, then some methods are going to be ‘reasonable’ that wouldn’t be when you’re trying to find a guy smoking pot.

For the most optimistic take on pinpoint searches, turn to the futurist David Brin, author of the 1998 book The Transparent Society. Brin believes a world of more perfect enforcement will create democratic pressure to either eliminate or drastically reduce penalties for “victimless” offenses. What matters, Brin avers, is not what the government knows about you but what it can do to you. To those who fear a world in which, for instance, routine speeding infractions are invariably met with stiff fines, Brin ripostes: “Can’t you trust your fellow citizens to not want that either?”

Andrew Napolitano, the author of The Constitution in Exile, is unconvinced. A legal analyst for Fox News and a former New Jersey judge, Napolitano joins Rotenberg in insisting that a “neutral magistrate” stand between police and the subjects of all government searches. He argues that it’s precisely when law enforcement agencies are most tempted to bypass checks on government snooping that the public is least apt to demand adherence to the letter of the law. For proof, he points to many Americans’ indifference to—or support of—the NSA’s warrantless wiretaps. “When the president can go on TV and get a 57 percent approval rating saying he doesn’t care about privacy, he only cares about security,” Napolitano concludes, “we may have to count on my black-robed colleagues to protect privacy.”

We may hope our elected representatives will either exempt a pothead from pinpoint searches, lighten his punishment to compensate for the new ease of capturing him, or even abandon their long-running war on him altogether. But what about more serious crimes, such as terrorism? Should we allow electronic sniffers to troll through vast haystacks of telecommunications data searching for jihadist needles, in the hope that terrorists will not simply use encryption technology to render such surveillance useless?

Tradeoffs to Come