The Electronic Surveillance and Fourth Amendment

TheElectronic Surveillance and Fourth Amendment

Issuespertaining to security and privacy have always elicited controversialreactions from people across the board. This may be as a result ofthe increased importance of security, given the fact that itguarantees or safeguards the enjoyment of all other rights. Even asgovernments and law enforcement agencies needed to safeguard securityof individuals, it has always been required that they do this andstill safeguard the privacy of individuals. As Julia Angwin notes inher book, even when law enforcement agencies needed to search thehouses of suspects, they were still required to have a searchwarrant. This essentially means that the privacy of individuals wasprotected as far as the confines of the walls of their houses wereconcerned. Unfortunately, the adoption of electronic technologiesthat have been incorporated in almost every aspect of peoples’lives has made it considerably difficult to protect one’s privacyirrespective of where he or she is. Indeed, it may be noted that alarge number of service providing entities are requiring thatindividuals surrender their information, which the entities canprovide to third parties without necessarily requiring the permissionof the individuals in question. Questions have been asked on whetherthis contravenes the fourth amendment. While there may be differingopinions, it is evident that the electronic surveillance is anaffront to the 4thAmendment of the United States Constitution as it allows for theelimination of the privacy of individuals.

Accordingto Kerr (39), it is often the case that as much as the information isprimarily meant for use in noble causes, it is subject to abuse. Inhis analogy, the use of surveillance often draws the attention of thelaw enforcement agencies which seek to use the information obtainedfrom surveillance to crack serious crimes. The information thatindividual shoppers leave in shopping malls when they use theircredit cards or even when shopping online and making transfers overthe internet often allow for the tracking of their activities. Suchinformation is often accessed by the law enforcement agencies,possibly with the sanctions from the executive, with the sole aim ofbeing used in solving serious crimes. As much as this may be achievedby the use of this information, there are instances where individualsin the law enforcement agencies use the digital footprint to watchthe activities of their wives when they suspect them of having anaffair. In this case, the individual would flag the account of hiswife as yellow “sohe could watch her coming and going through the DC metro system”(Kerr 39). Unfortunately, there are no sufficient safeguards orprotections against such rampant misuse of technology.

Onthe same note, the folly of this form of surveillance is the factthat there is absolutely no control over the entities or parties towhom the information will be availed in the long-term. As Goldsmith(48) notes, these communication channels are primarily under theownership and control of the private sector. This comes off as adangerous precedent particularly considering the fact the privatefirms concentrate primarily on profits rather than national security,in which case they would only invest in levels of security that arein tandem with or “satisfytheir private purposes and not the national interest incybersecurity”(Goldsmith 49). Unfortunately, a large number of people have becomeaccustomed to thinking about telecommunications and personalcomputers as private communication infrastructure, as well as seedata storage media as averse or immune to scrutiny from thegovernment to the extent of thinking that it is vigorously defendedby the 4thAmendment and varied other demanding and complex statutoryrestrictions. Unfortunately, this is not the case, which means thatit will be necessary to come up with laws that safeguard theinformation so obtained and ensure that it is protected from beingused in criminal ways. This is exactly what Angwin means in “NoEscaping Dragnet nation”when she states that there should be laws that give individuals muchmore control over the information that business entities obtain so asto ensure that they reveal as much or as little as they want and havemore control as to delete the information that they do not want toreveal to the public, albeit with some exceptions(

However,Slobogin (13) and Rosen (2) state that it is not so much the notionthat the electronic surveillance is a contravention of the FourthAmendment but rather the fact that the Fourth Amendment is inadequateand incapable of protecting the rights of citizens in the digital age(Slobogin 13) (Rosen 2). Indeed, Slobogin notes that the guaranteesof the Fourth Amendment have, in the last 2 centuries, beenstructured or confined to what may be categorized as physicalsearches such as “entryinto a house or car a stop and frisk of a person on the street orrifling through a person’s private papers”(12). However, the introduction of electronic devises and technologythat have the capacity to go beyond the walls and clothes, as well asaccess numerous records in a matter of seconds, have allowed lawenforcement agencies to be more reliant on the “virtual searches”or rather the investigative techniques that never necessitatephysical access to papers, people, premises or effects as thesurveillance may be undertaken covertly from afar. Rosen agrees thatthe sweeping technological changes such as genetic selection, brainscans and social networks have posed seemingly insurmountablechallenges to the constitutional values, in which case there is needfor modifications to be made to the constitution so as to safeguardits capacity to protect free speech, dignity and privacy in the ageof internet (Rosen 3).

Inconclusion, issues pertaining to privacy are usually controversial asthey touch on the basic or fundamental human rights. The FourthAmendment has always been deemed as pretty much protective ofindividual privacy as it prevents the intrusion of the same by thelaw enforcement agencies or other entities. Unfortunately,individuals often surrender this right in the age of electronictechnology, with business entities and social media networkscollecting individual information and having the capacity and rightto use it the way they deem fit. Unfortunately, this poses a securityrisk as some entities may not often use it in the best interests ofthe nation or even in enhancing national security. Essentially, it isimperative that amendments are made to the constitution so as toincrease its capacity to protect the privacy of individuals, as wellas their dignity. This may entail providing individuals with controlsregarding the amount of information that they would reveal to anyentity.


Goldsmith,Jack &quotCyberthreat, Government Network Operations, and the FourthAmendment&quot (47-66). In Rosen, Jeffrey and Benjamin Wittes“Constitution3.0 : freedom and technological change”New York: Brookings Institution Press, 2011. Print

Kerr,Orin S. &quotUse Restrictions and the Future of Surveillance Law&quot(37-46). In Rosen, Jeffrey and Benjamin Wittes “Constitution3.0 : freedom and technological change”New York: Brookings Institution Press, 2011. Print

Moyers&amp Company. No Escaping Dragnet Nation. YouTube, 2014. Webretrieved from

Rosen,Jeffrey. &quotTechnological Change and the Constitutional Future&quot(1-8). In Rosen, Jeffrey and Benjamin Wittes “Constitution3.0 : freedom and technological change”New York: Brookings Institution Press, 2011. Print

Slobogin,Christopher &quotIs the Fourth Amendment Relevant in a TechnologicalAge?&quot (11-36). In Rosen, Jeffrey and Benjamin Wittes“Constitution3.0 : freedom and technological change”New York: Brookings Institution Press, 2011. Print