{"id":11314,"date":"2014-04-28T15:16:36","date_gmt":"2014-04-28T20:16:36","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=11314"},"modified":"2014-04-28T09:28:25","modified_gmt":"2014-04-28T14:28:25","slug":"new-law-review-article-the-forgotten-right-to-be-secure","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=11314","title":{"rendered":"New Law Review Article: The Forgotten Right to Be Secure"},"content":{"rendered":"

The Forgotten Right to Be Secure<\/a>, Luke M. Milligan, 65 Hastings L.J. 713 (2014). Abstract: <\/p>\n

Surveillance methods in the United States operate under the general principle that \u201cuse precedes regulation.\u201d While the general principle of \u201cuse precedes regulation\u201d is widely understood, its societal costs have yet to be fully realized. In the period between \u201cinitial use\u201d and \u201cregulation,\u201d government actors can utilize harmful investigative techniques with relative impunity. Assuming a given technique is ultimately subjected to regulation, its preregulation uses are practically exempted from any such regulation due to qualified immunity (for the actor and municipality) and the exclusionary rule\u2019s good faith exception (for any resulting evidence). This expectation of impunity invites strategic government actors to make frequent and arbitrary uses of harmful investigative techniques during preregulation periods. Regulatory delays tend to run long (often a decade or more) and are attributable in no small part to the stalling methods of law enforcement (through assertions of privilege, deceptive funding requests, and strategic sequencing of criminal investigations). While the societal costs of regulatory delay are high, rising, and difficult to control, the conventional efforts to shorten regulatory delays (through expedited legislation and broader rules of Article III standing) have proved ineffective.
\nThis Article introduces an alternative method to control the costs of regulatory delay: locating rights to be \u201cprotected\u201d and \u201cfree from fear\u201d in the \u201cto be secure\u201d text of the Fourth Amendment. Courts and most commentators interpret the Fourth Amendment to safeguard a mere right to be \u201cspared\u201d unreasonable searches and seizures. A study of the \u201cto be secure\u201d text, however, suggests that the Amendment can be read more broadly: to guarantee a right to be \u201cprotected\u201d against unreasonable searches and seizures, and possibly a right to be \u201cfree from fear\u201d against such government action. Support for these broad readings of \u201cto be secure\u201d is found in the original meaning of \u201csecure,\u201d the Amendment\u2019s structure, and founding-era discourse regarding searches and seizures. The rights to be \u201cprotected\u201d and \u201cfree from fear\u201d can be adequately safeguarded by a judicially-created rule against government \u201cadoption\u201d of an investigative method that constitutes an unregulated and unreasonable search or seizure. The upshot of this Fourth Amendment rule against \u201cadoption\u201d is earlier standing to challenge the constitutionality of concealed investigative techniques. Earlier access to courts invites earlier judicial regulation, which, in turn, helps curb the rising costs of regulatory delay.<\/p><\/blockquote>\n

[Law review articles are reviewed by Prof. Andrew G. Ferguson, UDC School of Law.]<\/p>\n","protected":false},"excerpt":{"rendered":"

The Forgotten Right to Be Secure, Luke M. Milligan, 65 Hastings L.J. 713 (2014). Abstract: Surveillance methods in the United States operate under the general principle that \u201cuse precedes regulation.\u201d While the general principle of \u201cuse precedes regulation\u201d is widely … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-11314","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/11314","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=11314"}],"version-history":[{"count":2,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/11314\/revisions"}],"predecessor-version":[{"id":11316,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/11314\/revisions\/11316"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=11314"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=11314"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=11314"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}