Category Archives: Security

How Should We Imagine Perfect Surveillance?

With governmental surveillance becoming ever more ubiquitous, detailed, and automated, it’s become possible to imagine a regime of perfect surveillance, or an essentially boundless ability to detect crimes. Of course, perfect surveillance is now and may always remain hypothetical. But the prospect of digital panopticism is salient enough to appear in debates about real-life problems, and thinking about the extreme case of surveillance perfection might be a useful way of illuminating features of our more mundane reality. So the question arises: How might perfect surveillance alter our world?

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Two Ways of Linking “Positive Law” and the Fourth Amendment

In recent years, the Supreme Court has shown increased interest in the connection between the law of property and the Fourth Amendment. In a terrific new article, Will Baude and James Stern have explored that connection to defend “the positive law model of the Fourth Amendment.”

Will and James’s article is very illuminating, but I disagree with their use of the positive law to set a ceiling on what the Fourth Amendment can do. I explain my disagreements in a response piece that proposes an alternative approach, which I call “the positive law floor.”

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“The Right of the People to Be Secure in Their [Encrypted] Effects”

A couple of weeks ago, I wrote a post arguing that the Fourth Amendment should be part of the Apple iPhone litigation. My basic point was to criticize current Fourth Amendment doctrine, which focuses so extensively on individual privacy that it seems to exclude power- and security-based arguments that are central to the litigation. This post renews my argument in light of the government’s recent filing in the San Bernardino case.

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Why the Fourth Amendment Should Be Part of the Apple Case

The Apple iPhone case is the latest example of the classic tension between law enforcement and personal security, as Apple’s recent court filing has pointed out. Yet the constitutional provision whose text and history most clearly speak to that tension—the Fourth Amendment—is nowhere to be found in the litigation. This omission illustrates the need for a shift in the focus of Fourth Amendment law: from individual privacy to governmental power.

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Isn’t There a Tradeoff Between Liberty And Security?

I’ve recently come across several prominent quotes about the relationship between liberty and security. All of the quotes deny that there is a straightforward tradeoff between liberty and security–but each does so for a different reason.

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Ebola, Epidemics, and Federalism

The Ebola epidemic has made emergency public health measures a subject of global importance. Within the US, attention has focused on federal efforts to monitor potentially contagious persons entering the country, and on both state and federal efforts to curb the spread of infection. (Paul Rosenzweig’s post over at Lawfare is a good example.) Clearly, the end of this humanitarian crisis will turn on medicine and public policy. But there is also a set of constitutional doctrines relevant here. In recent years, public health problems have played a significant role in thought experiments regarding the scope of state and federal power. Some of these scenarios don’t seem quite so hypothetical anymore.

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