Matthew Radler · June 2012
80 GEO. WASH. L. REV. 1209 (2012)
Inescapably, the debate in the United States about law enforcement’s use of electronic surveillance is defined in terms of privacy. Whether discussed by courts, commentators, or legislators, the principal and often the only justification put forth for regulating the use of a given technology by the police is that it invades an interest somehow described as private. But as surveillance technology has extended to conduct that takes place on public property and in plain view of society at large, this rationale for regulation has become incapable of justifying the rules that result. This demand for privacy-based rules about public-conduct surveillance reached its apex (thus far) in 2010 in United States v. Maynard, the appellate decision affirmed on other grounds by the Supreme Court’s property-based ruling in United States v. Jones. Maynard’s theory of privacy rights in the context of police use of tracking devices—that they are violated by the mere aggregation of data—is so vulnerable to circumvention by police agencies that its efficacy as a basis for regulation is questionable at best. This Note proposes an alternative rationale for regulation of public-conduct surveillance, as well as a theory of institutional harm and an alternative rulemaking authority—an administrative agency—to address public-conduct surveillance issues. In an era when police action is the primary determinant of who is convicted of crimes, without meaningful review via trial, unchecked surveillance renders the judiciary a rubber stamp for local executive power; the demand for an ex ante record restores the supervisory role of the courts over police conduct. Preserving that institutional role, instead of protecting an increasingly difficult-to-justify notion of individual privacy in public behavior, provides a durable rationale, and ensuring that it is given full effect will require administrative, rather than judicial or legislative, oversight.
