Professor Slobogin Says It’s Hard to Find Reason to Celebrate the Fourth Amendment These Days
Two hundred years after the signing of the Constitution of the United States of America, it’s hard to find reason to celebrate what’s been called the most important part of the Bill of Rights, the Fourth Amendment, University of Florida Law Professor Christopher Slobogin said in a presentation at the law school on Sept. 19. In his presentation in the Chesterfield Smith Ceremonial Classroom, part of UF’s Constitution Day activities, Slobogin spoke on “The Constitution and Surveillance by the Government.”
Instead of a celebration, Slobogin said, much more apt would be a funeral service for the Fourth Amendment, the provision in the Bill of Rights that prohibits unreasonable searches and seizures and requires that warrants for searches and seizures be based on probable cause and describe what is being searched. Slobogin, whose book, Privacy at Risk: The New Government Surveillance and the Fourth Amendment, will soon be published by the University of Chicago Press, illustrated why he’s gloomy about the future of this part of the Constitution by talking “about the Fourth Amendment’s application—or more accurately under current law—its non-application to surveillance by the government.”
The Bush Administration’s surveillance policies have been much in the news lately, Slobogin said. Particularly in the past month there has been considerable controversy about the Protect America Act, which essentially permits the executive branch, with virtually no oversight by either the judicial or legislative branches, to eavesdrop on any phone call made to or from a person outside the United States.
Last year, there were revelations about the National Security Agency’s collection of millions of phone records in an effort to profile terrorists and other wrongdoers. Prior to that there was the Total Information Awareness datamining program, designed to cull through vast amounts of information from banks, credit card companies, hospitals, the IRS, phone companies, and a variety of other sources. Throughout all of this, Slobogin said, are various other types of surveillance programs, ranging from use of spy satellites and elaborate video camera systems run through multi-million dollar command centers to see-through technology that can penetrate walls.
“I have two messages here today,” Slobogin explained. “The first is the depressing one that, although all of these programs involve searches for information and often result in seizures of tangible items, only a few of them even come close to triggering the Fourth Amendment, as construed by the U.S. Surpeme Court. But I also have an optimistic message. That is that the public—that means you—and the courts, legislatures and yes, even the executive branch, can breath life back into the Fourth Amendment without sacrificing our nation’s security or preventing effective enforcement of our criminal laws.”