The Forgotten Right to Be Secure

Luke M. Milligan

Volume 65, Issue 3, 713-760

Surveillance methods in the United States operate under the general principle that “use
precedes regulation.” While the general principle of “use precedes regulation” is widely
understood, its societal costs have yet to be fully realized. In the period between “initial
use” and “regulation,” 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’s 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.

This Article introduces an alternative method to control the costs of regulatory delay:
locating rights to be “protected” and “free from fear” in the “to be secure” text of the
Fourth Amendment. Courts and most commentators interpret the Fourth Amendment to
safeguard a mere right to be “spared” unreasonable searches and seizures. A study of the
“to be secure” text, however, suggests that the Amendment can be read more broadly: to
guarantee a right to be “protected” against unreasonable searches and seizures, and
possibly a right to be “free from fear” against such government action. Support for these
broad readings of “to be secure” is found in the original meaning of “secure,” the
Amendment’s structure, and founding-era discourse regarding searches and seizures. The
rights to be “protected” and “free from fear” can be adequately safeguarded by a
judicially-created rule against government “adoption” of an investigative method that
constitutes an unregulated and unreasonable search or seizure. The upshot of this Fourth
Amendment rule against “adoption” 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.

Full Article