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Chimaera I - Chimaera Unleashed: The Specter of Warrantless Governmental Intrusion Is a Phantom that Has Achieved Greater Life in the Ether of Internet Communications By Vania Mia Chaker
The University of Florida Levin College of Law Journal of Technology Law & Policy, J. Tech. L. & Pol'y (2019)
  • Vania Chaker, Esq.
Abstract

The privacy rights[1] of American citizens have been eroding with metronomic regularity given the sharp rise in the government’s reliance on surreptitious electronic surveillance, warrantless digital searches, and deliberately engineered cybersecurity vulnerabilities[2]¾all of which have occurred with the sort of ubiquity that few could ever have previously imagined. The dangers of unfettered government searches and seizures are pervasive and grave. A world without a strong footing in the democratic principles and ideals of the Enlightenment upon which our country was founded would be a dark world indeed.
This Article analyzes the constitutionality of the United States government’s use of emerging technology to conduct warrantless searches of private citizens and companies, including their digital transmissions and stored electronic data. The analysis begins with an examination of the legal background of the Fourth Amendment, focusing on Katz v. United States[3] and its progeny, including a review of the most recent U.S. Supreme Court cases in the area of privacy and the Fourth Amendment: Carpenter v. United States,[4]Riley v. California,[5]andUnited States v. Jones.[6]While evaluating the government’s actions with respect to warrantless searches and surveillance in the post-Katz era, this Article turns to specific examples of surreptitious governmental monitoring programs that likely run awry of the rule of law and the United States Constitution.
This Article then considers the greater normative and policy implications of the government’s arguably extralegal conduct, including the potential for the derision of democratic values and ideals that may, in turn, result in the weakening of our country’s political framework and cybersecurity infrastructure. Sacrificing the ideals of our democracy in order to ostensibly protect it may instead serve to lead us down a road of dangerous folly. Such constitutional erosion could steer the United States toward a dangerously precipitous decline. For the greater good, it may be wise if the government were to carefully heed the maxims “respice finem” and “obsta principiis[7] before it strays from its fundamental democratic mandates.


             [1].   See, e.g., Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (discussing the Fourth Amendment’s guarantee of the right to be let alone).
            [2].   See, e.g., Jed Rubenfeld, The End of Privacy, 61 Stan. L. Rev. 101, 161 (2008); Rory Little, Protecting Privacy Under the Fourth Amendment, 91 Yale L.J. 313 (1982); Charles Fried, Privacy, 77 Yale L.J. 475, 493 (1968); Jonathan Mayer, Government Hacking, 127 Yale L.J. 570 (2018); Kevin S. Bankston, Only the DOJ Knows: The Secret Law of Electronic Surveillance, 41 U.S.F.L. Rev. 589, 593 (2007); Margaret Ziegler, Pay No Attention to the Man Behind the Curtain: The Government’s Increased Use of the State Secrets Privilege to Conceal Wrongdoing, 23 Berkeley Tech. L.J. 691 (2008). See also Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006); ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007).
             [3].   Katz v. United States, 389 U.S. 347 (1967).
             [4].   Carpenter v. United States, 138 S. Ct. 2206 (2018).
             [5].   Riley v. California, 134 S. Ct. 2473 (2014).
             [6].   United States v. Jones, 132 S. Ct. 945 (2012).
            [7].   Respice Finem, Merriam-Webster, https://www.merriam-webster.com/dictionary/ respice%20finem (last visited Mar. 17, 2019) (translating to “consider the end.”); What Is Obsta Principiis?, Law Dictionary, https://thelawdictionary.org/obsta-principiis/ (last visited Mar. 17, 2019) (“Withstand beginnings; resist the first approaches or encroachments.”).
Keywords
  • Constitutional Law,
  • Privacy,
  • Carpenter v US,
  • Third Party Doctrine,
  • Fourth Amendment,
  • First Amendmenrt,
  • Government Surveillance,
  • Warrantless Surveillance,
  • Internet of Things,
  • IoT
Publication Date
August 5, 2019
Citation Information
23 J. Tech. L. & Pol’y 1