Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras)

933

FOURTH AMENDMENT TIME MACHINES (AND WHAT THEY

MIGHT SAY ABOUT POLICE BODY CAMERAS)

Stephen E. Henderson

ABSTRACT

When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding

roots in traditional investigation, science is today providing something fundamentally different in

the form of remarkably complete digital records. And those big data records not only store our past,

but thanks to data mining they are in many circumstances eerily good at predicting our future.

So, now that we stand on the threshold of investigatory time travel, how should the Fourth

Amendment and legislation respond? How should we approach bulk government capture, such as

by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully

different from civilian equivalents that find their way into government hands, whether it be

tomorrow’s drone flight, or today’s record of all of our internet activity compiled by our internet

service provider, or a current record of all of our movements compiled by our mobile phone

company? What of targeted time machines such as government over-seizure of digital data in

every computer search? This Article considers the benefits and costs of these miraculous time-

machine technologies, including as evidenced by several recent court opinions. Considering the

very serious privacy implications—from the individual to the relational and societal—we have

good reason to be wary of their coming ubiquity. Yet perhaps in very limited spheres we should

welcome them, going so far as to entirely abandon front-end acquisition restrictions and rely solely

upon ex post access, use, and disclosure limitations to protect the security in our persons, houses,

papers, and effects. I suggest that one such sphere might be law enforcement body cameras, an

instance in which full capture has great benefits, and via which we can experiment upon the

utility of solely ex post restraints.

* Judge Haskell A. Holloman Professor of Law, the University of Oklahoma College of Law;

B.S. in Electrical Engineering, University of California at Davis; J.D., Yale Law School. I

am grateful to the University of Pennsylvania Journal of Constitutional Law for the invitation

to participate in the symposium, and to Nathan Hall and Jeffrey Vogt for excellent re-

search assistance. Several years ago, George Asllani and Adrienne Robertson also per-

formed some research which I have finally incorporated. Better late than never. Finally,

I am grateful to Kiel Brennan-Marquez, Jules Epstein, Andrew Ferguson, Harold Krent,

Christopher Slobogin, and Joseph Thai for providing comments and suggestions on pre-

vious drafts.

934 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

TABLE OF CONTENTS

NTRODUCTION ............................................................................. 934

THE NSA, HARD DRIVES, CELL PHONES, AND HOTEL

REGISTRIES ............................................................................. 940

A. Ganias and Preservation of Hard Drives ........................... 944

B. Riley and Searches of Cell Phones ..................................... 948

C. Patel and Searches of Hotel Registries ............................... 951

II.

PRIVACY .................................................................................... 954

III.

FOURTH AMENDMENT USE RESTRICTIONS AND POLICE

BODY CAMERAS ...................................................................... 960

ONCLUSION ................................................................................. 971

NTRODUCTION

Time travel fascinates, whether it is the 1895 science fiction of

H.G. Wells,

the 1985 humor of Back to the Future,

or the 2015 Holly-

wood manifestations in Terminator Genisys,

Project Almanac,

and

Tomorrowland.

The reality is quite a bit more pedantic. Astronauts

travel into the future via the relativistic effects of time dilation, it is

true, but in an amount measured in milliseconds.

To do anything

more impressive would require greater speeds than are currently pos-

sible.

Gazing at the stars is seeing events of time past, it is true,

but I

can do the same by inserting a DVD or opening a book. Travel into

the past remains the domain and dispute of theoretical physics and

its Einstein-Rosen Bridges, more commonly known as wormholes,

1 H.G. WELLS, THE TIME MACHINE (1895).

2 B

ACK TO THE FUTURE (Universal City Studios, Inc. 1985).

3 T

ERMINATOR GENISYS (Paramount Pictures 2015).

4 P

ROJECT ALMANAC (Paramount Pictures 2015).

5 T

OMORROWLAND (Walt Disney Pictures 2015). Time travel has been a feature of hun-

dreds of films. See Kenneth Krabat, All Time Travel Movies from 1896 and on, K

ENNETH

KRABATS 1000 STEMMER (Oct. 30, 2015), http://krabat.menneske.dk/kkblog/all-time-

travel-movies/.

6 See Time Dilation, W

IKIPEDIA, https://en.wikipedia.org/wiki/Time_dilation (last visited

Feb. 13, 2016).

7 Id.

8 How far is a light year?, E

ARTHSKY (Nov. 27, 2015), http://earthsky.org/astronomy-

essentials/how-far-is-a-light-year.

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 935

meaning that, so far as we know, traveling backwards in time might

prove forever impossible.

So much for science.

Yet when it comes to criminal investigation, time travel seems in-

creasingly possible. It is not actually time travel, of course, and it has

longstanding roots in traditional investigation. But science has pro-

vided us remarkably complete historical records in the form of digital

data.

Well over a half century ago, Justice Robert H. Jackson recog-

nized that “it would, no doubt, simplify enforcement of all criminal

laws if each citizen were required to keep a diary that would show

where he was at all times, with whom he was, and what he was up

to.”

The law requires no such diary. Only in certain sector-specific

instances, such as banking, prescription records, or hotel registries,

has the law itself created comprehensive records.

Nonetheless, we

increasingly create a diary like that Justice Jackson envisioned via our

smartphones and online technologies, and we even helpfully carry it

with us wherever we go. Further, the National Security Agency

(“NSA”) has demonstrated that data from various third party sources

might be gathered, stored, and later queried for evidence of criminal-

ity (or, in that case, evidence of threats to national security).

short, we are “living in the golden age of surveillance.”

And lest we think criminal investigation can only offer that elusive

travel back in time, developments in data mining and machine learn-

9 See Wormhole, WIKIPEDIA, https://en.wikipedia.org/wiki/Wormhole (last visited Oct. 31,

2015).

10 If my statements are proved dramatically wrong and we do learn to travel into the past, I

will look to rewrite this.

11 See Stephen E. Henderson, Our Records Panopticon and the American Bar Association Stand-

ards for Criminal Justice, 66 O

KLA. L. REV. 699, 700–06 (2014) (chronicling the massive in-

crease in digital information).

12 Shapiro v. United States, 335 U.S. 1, 71 (1948) (Jackson, J., dissenting) (arguing against

creation of the required records exception to the Fifth Amendment privilege against self-

incrimination).

13 See City of Los Angeles v. Patel, 135 S. Ct. 2443, 2456 (2015) (striking down an ordinance

giving police unrestricted and unchallengeable access to mandatory hotel guest regis-

tries); Whalen v. Roe, 429 U.S. 589, 598–600, 603–04 (1977) (permitting state prescrip-

tion registry against constitutional challenge); United States v. Miller, 425 U.S. 435 (1976)

(permitting government access to bank records required by Bank Secrecy Act of 1970).

The most robust category of ongoing, population-wide acquisition and databasing would

seem to be health information, but such acquisition has been little analyzed, perhaps be-

cause it is typically acquired for civil purposes. But that of course does not take it outside

of the ambit of the Fourth Amendment, and Wendy Mariner has written a critical analysis

of this historic “pass.” See generally Wendy K. Mariner, Reconsidering Constitutional Protection

for Health Information Privacy, 18 U.

PA. J. CONST. L. 935 (2016).

14 See infra at 940–43.

15 B

RUCE SCHNEIER, DATA AND GOLIATH: THE HIDDEN BATTLES TO COLLECT YOUR DATA AND

CONTROL YOUR WORLD 4 (2015).

936 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

ing are demonstrating that significant human behavior is predictable.

For example, one study using mobile phone data found that location

is 93% predictable,

and based only upon Facebook “likes,” a com-

puter was able to better predict personality and personal problems,

including substance abuse, than real-life friends.

So, the more we

learn about the past, the better we can predict the future.

We have

not reached anything like the world of Philip K. Dick’s The Minority

Report with its mutant forward-seeing precogs,

or the world of Lewis

Padgett’s Private Eye with its ever-recording surroundings.

But, as is

so often the case, today’s science is creeping towards yesterday’s sci-

ence fiction.

So what happens as technology increasingly permits capture of

almost all information? How should we, and our constitutional juris-

prudence, approach bulk government capture, such as by a solar-

powered drone employing wide-area persistent-stare technology,

by a massive system of interconnected ground cameras?

Is it equiva-

16 Chaoming Song et al., Limits of Predictability in Human Mobility, 327 SCIENCE 1018, 1021

(2010), http://www.barabasilab.com/

pubs/ CCNR-ALB_Publications/ 201002-19_Science-

Predictability/

201002-19_Science-Predictability.pdf; see also Dr Seldon, I Presume,

CONOMIST, Feb. 23, 2013, at 76.

17 See Clifton B. Parker, New Stanford Research Finds Computers Are Better Judges of Personality

Than Friends and Family, S

TANFORD REP. (Jan. 12, 2015), http://news.stanford.edu/

news/2015/january/personality-computer-knows-011215.html; Wu Youyou et al., Comput-

er-based Personality Judgments Are More Accurate Than Those Made by Humans, 112

NAT’L

ACAD. SCI. 1036, 1036–39 (2015), http://www.pnas.org/content/112/4/1036.full.pdf.

18 Police are increasingly interested in such prediction. See Andrew Guthrie Ferguson, Big

Data and Predictive Reasonable Suspicion, 163 U.

PA. L. REV. 327, 369–73 (2015) (explaining

predictive policing); Andrew Guthrie Ferguson, Predictive Policing and Reasonable Suspicion,

62 E

MORY L.J. 259, 265–85 (2012) (same).

19 See The Minority Report, W

IKIPEDIA, https://en.wikipedia.org/wiki/The_Minority_Report

(describing the film) (last visited Oct. 7, 2015).

20 Lewis Padgett, Private Eye, in

MIRROR OF INFINITY: A CRITIC’S ANTHOLOGY OF SCIENCE

FICTION 99 (Robert Silverberg ed. 1970).

21 See Ryan Gallagher, Could the Pentagon’s 1.8 Gigapixel Drone Camera Be Used for Domestic Sur-

veillance?, S

LATE (Feb. 6, 2013, 10:14 AM), http://www.slate.com/ blogs/ future_

tense/

2013/ 02/ 06/ ar-

gus_is_could_the_pentagon_s_1_8_gigapixel_drone_camera_be_used_for_domestic.html

(describing government drone capability for data collection); Tyler Rogoway, Drones in

Afghanistan Have the Most Advanced Aerial Surveillance Ever, F

OXTROT ALPHA (Apr. 6, 2015,

9:40 AM), http://foxtrotalpha.jalopnik.com/

drones-in-afghanistan-have-the-most-

advanced-aerial-sur-1695912540 (describing the aptly named Gorgon Stare Increment II,

which combines images from 368 integrated cameras); Tyler Rogoway, How One New

Drone Tech Finally Allows All-Seeing Surveillance, F

OXTROT ALPHA (Aug. 18, 2014, 12:45 PM),

http://foxtrotalpha.jalopnik.com/

how-one-new-drone-tech-finally-allows-all-seeing-survei-

1553272901 (explaining several such technologies and both their utilities and their dan-

gers).

22 See Elizabeth E. Joh, Policing by Numbers: Big Data and the Fourth Amendment, 89 WASH. L.

REV. 35, 48–50 (2014) (describing New York’s "Domain Awareness System”); Somini

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 937

lent to a general warrant that can never be reasonable, or is that too

simplistic an analogy?

The general warrant permitted indiscrimi-

nate searching, not merely storing. Is such direct gathering meaning-

fully different from what the government could obtain from a private

party gathering such data, either by drone

or by a vast network of

interconnected cameras?

Is it meaningfully different from what is

available via an internet service provider that logs all of our online ac-

tivity? Or from a mobile phone company tracking all of our move-

ments? What about searches of our own devices that spy upon us,

like our computers that log information we do not realize or desire?

Can the government forever freeze and store that data, creating a

mini, targeted time machine? Can it do the same by recording every

home that officers enter, perhaps via officer body cameras?

While it may not be immediately obvious what to do about these

disparate Fourth Amendment time machines, there is value in con-

sidering them for what they are. We should consider how they affect

the security in our persons, houses, papers, and effects.

And we

should consider their benefits to criminal investigation and, perhaps,

separately to front-end deterrence. We have always known that lim-

ited government norms like that expressed in the Fourth Amend-

ment are anti-accuracy: if police could enter any home at will, or

even were quartered there, we would have less crime.

But life would

be insufferable, and so we accept more crime in return for more lib-

Sengupta, Privacy Fears Grow as Cities Increase Surveillance, N.Y. TIMES (Oct. 13, 2013),

http://www.nytimes.com/2013/10/14/technology/privacy-fears-as-surveillance-grows-in-

cities.html (describing systems in several cities).

23 The general warrant in the form of the writs of assistance was a major impetus for the

American Revolution and for the Constitution’s Fourth Amendment. See Boyd v. United

States, 116 U.S. 616, 625–27 (1886). For an analysis of the Fourth Amendment law of

government drone flight, see Marc Jonathan Blitz, James Grimsley, Stephen E. Hender-

son & Joseph Thai, Regulating Drones Under the First and Fourth Amendments, 57

WM. & MARY

L. REV. 49, 65–72 (2015). See also David Gray & Danielle Citron, The Right to Quantitative

Privacy, 98 M

INN. L. REV. 62, 71–72 (2013) (citations omitted) (“In our view, the thresh-

old Fourth Amendment question should be whether a technology has the capacity to fa-

cilitate broad and indiscriminate surveillance that intrudes upon reasonable expectations

of quantitative privacy by raising the specter of a surveillance state if deployment and use

of that technology is left to the unfettered discretion of law enforcement officers or other

government agents.”).

24 See generally Blitz et al., supra note 23, at 70–71 (explaining the First Amendment right to

fly recording drones and its connection to the Fourth Amendment).

25 See, e.g., Diane Cardwell, A Light Bulb Goes On, Over the Mall, N.Y.

TIMES, July 20, 2015, at

B1 (describing systems of internet connected cameras placed in lighting).

26 See U.S. CONST. amend. IV.

27 See, e.g., United States v. Ganias, 755 F.3d 125, 139 (2d Cir. 2014) (“[T]he Fourth

Amendment clearly embodies a judgment that some evidence of criminal activity may be

lost for the sake of protecting property and privacy rights.”).

938 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

erty, while always attempting not only the ideal balance—whatever

that might be—but also always seeking pareto superior moves that in-

crease one without lessening the other. As science increasingly per-

mits capture without immediate human observation, does this call for

a fundamental rethinking? Should we in certain instances abandon

entirely front-end limitations on capture so long as we are guaranteed

evenhanded treatment that traditional investigation lacks, and back-

end limitations on access, use, and distribution? Can we ever feel se-

cure if there is a government “database of ruin” that could be ac-

cessed at any moment?

Yet can we turn our backs on the ability to

save lives and livelihoods, and in a manner that uniformly distributes

the privacy costs?

For some, perhaps the failed East German state and its Stasi is suf-

ficient answer, a view to which I am personally sympathetic.

But, of

course, access to those secret police files was not strictly circum-

scribed by fair legal process, and, more importantly, the data in the

files were created by and for officers of the state. Should the same

rules apply when data are created for other, beneficial purposes, or

will never be subject to human analysis except upon demonstrated

cause?

And if it becomes the case that, either on account of lack of

political will, or perhaps on account of very broadly interpreted First

Amendment rights, private third parties retain all data,

is there a re-

alistic way to keep them out of government hands, or do the more

important questions essentially once again amount to access, use, and

28 See Paul Ohm, Don’t Build a Database of Ruin, HARV. BUS. REV. (Aug., 23, 2012),

https://hbr.org/2012/08/dont-build-a-database-of-ruin (arguing against thoughtless

databasing in the private sphere).

29 The details of any such claim to decreasing crime would be difficult, and would typically

rely less on preventing crime than on deterrence via raising the likelihood of apprehen-

sion and conviction, thereby raising crime’s expected cost. Whereas ex ante detection via

data mining is extremely difficult and in some contexts currently impossible, ex post sift-

ing through data to find then-evident connections is much easier. See S

CHNEIER, supra

note 15, at 136–40. And it is not hard to see that knowing everything tends to discourage

crime and facilitate its apprehension.

30 See, e.g., G

ARY BRUCE, THE FIRM: THE INSIDE STORY OF THE STASI (2010); ANNA FUNDER,

TASILAND: STORIES FROM BEHIND THE BERLIN WALL (2011); ROBERT H. SLOAN &

RICHARD WARNER, THE SELF, THE STASI, THE NSA: PRIVACY, KNOWLEDGE, AND COMPLICITY

IN THE

SURVEILLANCE STATE (forthcoming 2016) (manuscript at 5),

http://ssrn.com/abstract=2577308. For a beautiful film fictionalizing some of the per-

sonal costs—and triumphs—of the human spirit in such surveillance conditions, see T

LIVES OF OTHERS (Sony Pictures 2006).

31 See, e.g., Persistent Stare Through Imagination, U.

ARIZ. SCH. INFO.: SCI., TECH., AND ARTS,

http://w3.sista.arizona.edu/minds-eye.html (last visited Nov. 4, 2015) (seeking to build

an artificially intelligent surveillance system).

32 See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 342–43, 367–71 (2010) (rec-

ognizing robust First Amendment rights of corporations).

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 939

disclosure? If a store-everything world is so abhorrent—and I per-

sonally believe it might be—then why do we keep rushing towards

precisely that?

Big questions rarely have small or singular answers, and this Arti-

cle will hardly provide either. But it can begin the conversation or,

more accurately, continue it under different framing. It does so in

the following manner. Part I reminds us what the National Security

Agency was attempting with its bulk telephone metadata collection,

and then looks at two recent court decisions, one by a Second Circuit

panel in United States v. Ganias (now headed en banc)

and one from

the United States Supreme Court in Riley v. California,

each of which

articulates a realization that historic digital data are meaningfully dif-

ferent for Fourth Amendment purposes. It then considers the Su-

preme Court’s most recent Fourth Amendment decision, City of Los

Angeles v. Patel, in which the Court floats the proposition that record-

keeping for purposes of deterrence might be a “special need” subject

to more lenient Fourth Amendment rules.

All three decisions and

the NSA metadata program concern what might be considered

Fourth Amendment time machines.

Part II canvasses the important principles of information privacy

that are at stake. Part III then travels back in time to consider a 1995

proposal by Harold Krent in which he argues the Fourth Amendment

should employ use restrictions upon data law enforcement has lawful-

ly acquired.

The Second Circuit panel in Ganias would have recog-

33 Information security expert and frequent commentator Bruce Schneier declared “game

over” in 2013:

So, we’re done. Welcome to a world where Google knows exactly what sort of

porn you all like, and more about your interests than your spouse does. Welcome

to a world where your cell phone company knows exactly where you are all the

time. Welcome to the end of private conversations, because increasingly your

conversations are conducted by e-mail, text, or social networking sites.

And welcome to a world where all of this, and everything else that you do or is

done on a computer, is saved, correlated, studied, passed around from company to

company without your knowledge or consent . . . . Welcome to an Internet without

privacy, and we’ve ended up here with hardly a fight.

Bruce Schneier, The Internet Is a Surveillance State, CNN, (Mar. 16, 2013, 2:04 PM),

http://www.cnn.com/2013/03/16/opinion/schneier-internet-surveillance/index.html.

Perhaps, however, at least some of the problem is one of market failure that could be

remedied via regulation requiring internalizing of privacy harms. See A. Michael

Froomkin, Regulating Mass Surveillance as Privacy Pollution: Learning from Environmental Im-

pact Statements, 2015 U. Ill. L. Rev. 1713, 1728–37 (2015).

34 755 F.3d 125 (2d Cir. 2014), reh’g granted, 791 F.3d 290 (2d Cir. 2015) (en banc).

35 134 S. Ct. 2473 (2014).

36 135 S. Ct. 2443 (2015).

37 Harold J. Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment, 74

EX. L. REV. 49 (1995).

940 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

nized such a restriction.

It would of course be a significant further

move to argue that the Fourth Amendment might be satisfied by such

restrictions alone, a move I believe is fraught with great danger in

most contexts. But perhaps there are limited contexts in which a

move to solely use restrictions is one that legislatures, courts, agen-

cies, and commentators should at least debate, if not begin to exper-

iment with. Particularly when designed by legislatures, perhaps pro-

grams of uniform applicability should generally be considered

constitutionally reasonable. And if there is any chance we are ever to

rely solely upon back-end limitations in the world of Fourth Amend-

ment time machines, it would be best to start learning now, in smaller

spheres, whether such means can ever alone guarantee the securities

promised by the Fourth Amendment. Thus, perhaps an ideal sphere

for experimentation might be officer body cameras. Here the bene-

fits of always recording are sufficiently great, and the domain suffi-

ciently narrow, that it seems reasonable—and perhaps wise—to al-

ways record and to rely upon access, use, and disclosure limitations to

protect our security interests.

THE NSA, HARD DRIVES, CELL PHONES, AND HOTEL REGISTRIES

On June 6, 2013, Glenn Greenwald broke the first story based up-

on the disclosures of former NSA contractor Edward Snowden.

Pur-

suant to an order from the secret Foreign Intelligence Surveillance

Court, Verizon Business was providing the National Security Agency,

“on an ongoing daily basis,” “all call detail records or ‘telephony

metadata’ created . . . for communications (i) between the United

States and abroad; or (ii) wholly within the United States, including

local telephone calls.”

“Telephony metadata” was defined to in-

clude “originating and terminating telephone number” and “time

and duration of the call.”

The NSA was creating a database of all

telephone calls made on the Verizon Business network. Similar or-

38 See infra at 945–46.

39 Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily,

UARDIAN (June 6, 2013), http://www.theguardian.com/ world/ 2013/ jun/ 06/ nsa-

phone-records-verizon-court-order. Many others would follow. See G

LENN GREENWALD,

NO PLACE TO HIDE: EDWARD SNOWDEN, THE NSA, AND THE U.S. SURVEILLANCE STATE 90–

169 (2014) (discussing the programs Snowden disclosed).

40 Secondary Order, In re Application of the Federal Bureau of Investigation for an Order

Requiring the Production of Tangible Things, No. BR 13-80, at 1–2 (FISC Apr. 25, 2013),

http://www.theguardian.com/

world/ interactive/ 2013/ jun/ 06/ verizon-telephone-data-

court-order.

41 Id. at 2.

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 941

ders were issued to other carriers, such that the NSA was databasing

virtually all telephone calls made or received in the United States.

Why? Perhaps no program of surveillance is surprising for an

agency that eerily declares its “collection posture” as “Sniff it All—

Know it All—Collect it All—Process it All—Exploit it All—Partner

[Share] it All.”

But why in particular did the NSA want to gather

these phone records? Because the NSA wanted a time machine.

Say

on August 1, 2015, the agency obtained reason to believe a particular

telephone number, 301-688-6524, was being used by a terrorist. That

might lead to a court order requiring the provider to place a pen reg-

ister and trap and trace device on that line,

but of course the line

might at this point be abandoned, or at least this would not reveal

communications made in the past. So, a court order might require

the provider to produce historic records.

Only the provider might

have retained those records for only a limited duration. Moreover,

the NSA wanted guaranteed access not only to the numbers with

which 301-688-6524 had communicated (first “hop”), but also the

numbers with which those first hop numbers had communicated (se-

cond “hop”), and further the numbers with which those second hop

persons had communicated (third “hop”).

The amount of data is

growing exponentially, such that if each telephone number commu-

nicated with one hundred others, the NSA is looking at one million

records. Quite convenient, then, to have everything stored and ready

to query in their own servers. Time machines are handy like that.

The NSA claimed statutory authorization to create this “historical

repository”

was found in Section 215 of the USA PATRIOT Act.

42 See Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 796–97 (2d Cir. 2015); PRIVACY

AND

CIVIL LIBERTIES OVERSIGHT BD., REPORT ON THE TELEPHONE RECORDS PROGRAM

CONDUCTED UNDER SECTION 215 OF THE USA PATRIOT ACT AND ON THE OPERATIONS OF

THE

FOREIGN INTELLIGENCE SURVEILLANCE COURT 8 (2014), http://fas.org/irp/offdocs/

pclob-215.pdf [hereinafter PCLOB

REPORT].

43 Greenwald, supra note 39, at 97.

44 This particular time machine would also be useful as, over time, the world’s largest social

network map.

45 See 50 U.S.C. § 1842 (2012) (authorizing approved use of pen register or trap and trade

device for investigation).

46 See 50 U.S.C. § 1861 (2012) (authorizing such orders).

47 See Clapper, 785 F.3d at 797; PCLOB

REPORT, supra note 42, at 9, 28–29.

48 The bulk telephony metadata program was not the NSA’s only time machine. See, e.g.,

Bruce Schneier, More about the NSA’s XKEYSCORE, S

CHNEIER ON SECURITY (July 7, 2015,

6:38 AM), https://www.schneier.com/blog/archives/2015/07/more_about_the_.html

(explaining another program by which the NSA pulled massive amounts of internet data

from fiber optic backbone cables).

49 Clapper, 785 F.3d at 812.

942 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

Whether or not it would be ideal to create such time machines, the

NSA was certainly wrong in claiming it had been granted here.

Thus, the co-author of USA PATRIOT worked to enact legislation

that has, for now, shut down this particular program, at least in the

sense that the telephone records are no longer being centralized

from all providers and held by the government.

But this has not

been the first such government attempt,

and it would be startling if

it is the last. There is nothing particularly special about telephone

numbers that make them the only useful time machine metadata:

the same use could be made of financial, internet, and other data.

In rejecting the NSA’s contention that its bulk collection satisfied the

required relevance threshold, the Second Circuit reasoned as follows:

If information can be deemed relevant solely because of its necessity to a

particular process that the government has chosen to employ, regardless

of its subject matter, then so long as “the government develops an effec-

tive means of searching through everything in order to find some-

thing, . . . everything becomes relevant to its investigations”—and the gov-

50 Uniting and Strengthening America By Providing Appropriate Tools Required to Inter-

cept and Obstruct Terrorism (“USA PATRIOT ACT”) Act of 2001 § 215, Pub. L. 107-56,

115 Stat. 272, 287–88 (codified at 50 U.S.C. § 1861 (2012)) [hereinafter USA PATRIOT

Act].

51 See Clapper, 785 F.3d at 812–21 (holding that Section 215 did not authorize the telephony

data collection program); PCLOB

REPORT, supra note 42, at 10 (“conclud[ing] that Sec-

tion 215 does not provide an adequate legal basis to support the [telephone records]

program”); Stephen E. Henderson, A Rose By Any Other Name: Regulating Law Enforcement

Bulk Metadata Collection, 94 T

EX. L. REV. SEE ALSO 28 (2016) (same).

52 See Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Disci-

pline Over Monitoring Act of 2015 (“USA FREEDOM Act of 2015”) §§ 101–10, Pub. L.

114-23, 129 Stat. 268-76 (to be codified at 50 U.S.C. § 1861); Lisa Mascaro, House Over-

whelmingly Approves Bill to Curb NSA Domestic Spying, L.A.

TIMES (May 22, 2014),

http://www.latimes.com/nation/politics/la-na-nsa-reforms-20140523-story.html. Accord-

ing to Representative Jim Sensenbrenner, the NSA interpretation was “like scooping up

the entire ocean to guarantee you catch a fish.” Jennifer Valentino-DeVries & Siobhan

Gorman, Secret Court Ruling Expanded Spy Powers, W

ALL ST. J., July 8, 2013, at A4.

53 For years, the DEA collected massive amounts of telephone metadata for international

calls under its administrative subpoena authority, an apparent precursor to the NSA bulk

collection. See Brad Heath, U.S. Secretly Tracked Billions of Calls for Decades, USA

TODAY

(Apr. 8, 2015), http://www.usatoday.com/story/news/2015/04/07/dea-bulk-telephone-

surveillance-operation/70808616/. And there was of course the ill-fated Total Infor-

mation Awareness program. See Joshua Partlow, Senate Votes to Deny Funding To Computer

Surveillance Effort, W

ASH. POST, July 19, 2003, https://www.washingtonpost.com/archive/

business/2003/07/19/senate-votes-to-deny-funding-to-computer-surveillance-

effort/251243f1-8a66-4693-9970-f714130b783f/ (discussing the Senate’s denial of funding

to the Total Information Awareness initiative, a computer surveillance program that

would enable the government to amass and search databases of records for potential ter-

rorist activity).

54 Clapper, 785 F.3d at 818.

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 943

ernment’s “technological capacity to ingest information and sift through

it efficiently” would be the only limit to what is relevant.

This criticism, first made by the Privacy and Civil Liberties Oversight

Board, is a fair criticism of the NSA’s interpretation of “relevance,” in

that it is an interpretation inconsistent with legal tradition. But no-

tice the proposition is not illogical: if later searches would prove use-

ful in investigating national security threats (or crime), the existence

of the database is relevant to a legitimate government role, and the

program did include audit, security, and reporting requirements.

But again, in this case it was clear this novel interpretation was not

one Congress intended. The Second Circuit was correct that:

Such expansive development of government repositories of formerly pri-

vate records would be an unprecedented contraction of the privacy ex-

pectations of all Americans. Perhaps such a contraction is required by

national security needs in the face of the dangers of contemporary do-

mestic and international terrorism. But we would expect such a momen-

tous decision to be preceded by substantial debate, and expressed in

unmistakable language.

Instead, USA PATRIOT and its legislative sponsors intended, and

therefore used, the traditional language of legal relevance.

But

what if the debate occurred and that unmistakable language did

come about? Then there would of course be the question of whether

it is a method of investigation the Constitution will abide. Although

the Second Circuit did not decide this constitutional issue, it recog-

nized the issue as “one of the most difficult issues in Fourth Amend-

ment jurisprudence: the extent to which modern technology alters

our traditional expectations of privacy.”

Is this an issue of technology? After all, was not the first investigat-

ing “time machine” an officer taking notes on what she hears and

sees, not to mention the myriad recordkeeping requirements im-

posed by the modern industrial State? Three recent decisions shed

more light on this issue: a panel decision in the Second Circuit (now

headed en banc) considering a digital time machine in the form of

55 Id. at 818 n.10 (quoting PCLOB REPORT, supra note 42, at 62).

56 Id. at 797–98 (terming them “minimization procedures”); PCLOB

REPORT, supra note 42,

at 33–36. Those requirements did not, however, protect data that had been found re-

sponsive to seed queries and thus was placed in the NSA “corporate store.” PCLOB

REPORT, supra note 42, at 30–31. In other words, access to once responsive data was

thereafter unrestricted.

57 Clapper, 785 F.3d at 818.

58 Id. at 811.

59 Id. at 822.

944 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

government preservation of private computer hard drives,

a deci-

sion by the United States Supreme Court considering a voluntarily

compiled and carried digital time machine in the form of a mobile

phone,

and another decision by the Supreme Court considering

much more old-fashioned recordkeeping in the form of a hotel guest

registry.

A. Ganias and Preservation of Hard Drives

In November of 2003, federal agents executed a search warrant on

the accounting offices of Stavros Ganias.

Ganias himself was not the

target, but rather the Army was investigating one of his clients with

whom the Army contracted.

The agents executing the warrant

therefore did not remove Ganias’s three computers, respecting his as

an ongoing business, but instead mirrored the hard drives, making

exact duplications thereof.

Forensics examiners thereafter copied

that data onto two sets of identical DVDs, thereby preserving the gov-

ernment originals from any harm occasioned by access.

That access would not occur for eight months, until July 2004,

when Army forensics agents began to review the DVDs pursuant to

the search warrant.

When they discovered the suspect business

might have committed tax fraud, they shared a copy of the data with

the IRS,

and together the two sets of investigators ultimately identi-

fied all responsive material by December of 2004.

Nonetheless, the

agents did nothing to try and delete or return the non-responsive ma-

terial. Unlike for seized physical items, these agents never consider

deleting or returning non-responsive digital data.

“[Y]ou never

know what data you may need in the future,” testified one.

In July of 2005, some twenty months after the search of Ganias’s

office and corresponding seizure of his computer data, Army and IRS

investigators came to believe that Ganias might have been underre-

60 United States v. Ganias, 755 F.3d 125, 128 (2d Cir. 2014), reh’g granted, 791 F.3d 290 (2d

Cir. 2015) (en banc).

61 Riley v. California, 134 S. Ct. 2473, 2480 (2014).

62 City of Los Angeles v. Patel, 135 S. Ct. 2443, 2447 (2015).

63 Ganias, 755 F.3d at 128.

64 Id.

65 Id.

66 Id. at 129.

67 Id.

68 Id.

69 Id.

70 Id.

71 Id.

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 945

porting income, and therefore expanded their investigation to in-

clude him as a suspect.

They therefore wanted to have another look

at his files, but appropriately did not consider their mere possession

of those files to authorize further searches thereof.

To understand why, one must first consider traditional searches

and basic Fourth Amendment law. When police search a home pur-

suant to a warrant, they may look only where sought-after items can

be.

And they may seize only things the warrant authorizes, or things

so located for which authority for seizure is “immediately apparent,”

such as child pornography or obviously illegal drugs.

These things

are said to be in “plain view.”

So, for example, police searching for

a large knife should not open a small book at all—it cannot contain

the sought-after knife, and therefore is not subject to search. Where-

as police searching for a knife and any threatening communications

could peruse the small book. But upon finding it to contain entirely

unrelated material, police of course must leave the book behind un-

less that material is independently subject to seizure, meaning the of-

ficer has probable cause to believe it either the fruit of crime (it ap-

pears to be a rare book that was reported stolen), an instrumentality

of crime (it appears to be the very book used to lure a young victim),

contraband (it appears to contain child pornography), or evidence of

crime (it appears to contain the planning for a recent bank rob-

bery).

In rare instances, large quantities of physical documents

might be impossible to sort onsite, but then special rules are to be fol-

lowed.

With computers, everything is done differently. Because they con-

tain so much disparate data, and in so many formats, police cannot

reasonably be expected to bring experts to sufficiently sort through it

on site.

Thus, courts all permit over-seizure of digital evidence in eve-

72 Id.

73 Id. at 129, 133 n.7.

74 Horton v. California, 496 U.S. 128, 140–41 (1990).

75 Id. at 136–37.

76 Id.

77 Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 301–02 (1967).

78 Ganias, 755 F.3d at 135 (citing United States v. Tamura, 694 F.2d 591, 595–96 (9th Cir.

1982)).

79 See O

FFICE OF LEGAL EDUC., EXEC. OFFICE OF U.S. ATTORNEYS, SEARCHING AND SEIZING

COMPUTERS AND OBTAINING ELECTRONIC EVIDENCE IN CRIMINAL INVESTIGATIONS 76–79

(2009), http://www.justice.gov/sites/default/files/criminal-ccips/legacy/2015/01/14/

ssmanual2009.pdf. For an analysis of the law regulating the forensic search, see Stephen

E. Henderson, What Alex Kozinski and the Investigation of Earl Bradley Teach About Searching

and Seizing Computers and the Dangers of Inevitable Discovery, 19 W

IDENER L. REV. 115, 130–36

(2013).

946 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

ry instance: the entire hard drive, say, can be seized even though

much, most, or even all of its contents—entire libraries of digital ma-

terials, let alone files arguably equivalent to that small book found in

the hypothetical home search—are in fact entirely innocent.

Investigators have thus obtained a time machine. Following the

November 2003 execution of the search warrant, Ganias modified the

relevant files.

Therefore, had the government not over-seized and

then retained digital content that it knew was not relevant to the first

investigation, and therefore which was not covered by the original

warrant, this evidence would not have existed.

Yet because agents

did retain not only the exact copies of his hard drive but also the

DVDs, the data did exist. And they might retain such data for ten,

twenty, or a hundred years.

So, pursuant to another warrant ob-

tained in April 2006—some two-and-a-half years after the data’s sei-

zure—the government once again searched the data and found in-

criminating evidence. Time machines are handy like that.

The Second Circuit panel addressed just this time machine func-

tionality, although its opinion is now vacated pending en banc re-

view

[W]e consider a [] limited question: whether the Fourth Amendment

permits officials executing a warrant for the seizure of particular data on

a computer to seize and indefinitely retain every file on that computer

for use in future criminal investigations. We hold that is does not.

The over two-year retention of Ganias’s unresponsive data, retained a

year and a half after the government had concluded it was non-

responsive, violated the Fourth Amendment.

Or, at the very least,

its use in a future criminal investigation did.

80 See Ganias, 755 F.3d at 135–36 (collecting cases).

81 Id. at 130.

82 Id. at 130, 138 n.11.

83 For the various FBI retention policies, see Records Control Schedules,

NATIONAL ARCHIVES

AND

RECORDS ADMINISTRATION, http://www.archives.gov/records-mgmt/rcs/schedules/

?dir=/departments/department-of-justice/rg-0065; see also U.S.

DEP’T OF JUSTICE,

FEDERAL BUREAU OF INVESTIGATIONS, A GUIDE TO CONDUCTING RESEARCH IN FBI RECORDS

(2010), https://www.fbi.gov/foia/a-guide-to-conducting-research-in-fbi-records. The

harms are of course even greater when law enforcement has seized the originals and not

merely image copies. See, e.g., United States v. Gladding, 775 F.3d 1149, 1152 (9th Cir.

2014) (requiring the government to prove it is not feasible to disaggregate, and then re-

turn, innocent over-seized data).

84 Ganias, 791 F.3d 290.

85 Ganias, 755 F.3d at 137. Cf. United States v. Johnston, 789 F.3d 934, 941–43 (9th Cir.

2015) (holding, without considering Ganias, that a five-year delay in searching a comput-

er pursuant to the original warrant is not constitutionally problematic).

86 Ganias, 755 F.3d at 138. In so holding, the court importantly sided with those arguing

Fourth Amendment seizure is implicated by any meaningful deprivation in the exclusive

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 947

I agree, though I differ from the panel’s reasoning. The panel be-

lieved the government’s position would mean that “every warrant to

search for particular electronic data would become, in essence, a

general warrant.”

That does not seem quite apt, as a general war-

rant permitted the executive to search anyone’s house for information

of interest,

or at least one person’s house for anything incriminat-

ing,

whereas both in 2003 and in 2006 the government obtained a

warrant demonstrating particularized suspicion towards Ganias’s da-

ta, and in each instance agents thereafter only looked for the respon-

sive data. Instead, the government’s position would turn every com-

puter warrant into an investigative time machine.

It is a serious invasion if the government can over-seize massive

amounts of private information and forever retain it for indefinite

later search. One can understand the concern of the government,

which is that if the data are not retained in their original form it

might be difficult to answer later claims of unreasonable search or

challenges to authentication.

But, like the panel, I do not see that

possession of property. Id. at 137 (“The Government’s retention of copies of Ganias’s

personal computer records for two-and-a-half years deprived him of exclusive control over

those files for an unreasonable amount of time. . . . This was a meaningful interference

with Ganias’s possessory rights in those files and constituted a seizure within the meaning

of the Fourth Amendment.”). See Paul Ohm, The Fourth Amendment Right to Delete, 119

ARV. L. REV. F. 10, 12 (2005) (arguing for such an interpretation).

87 Ganias, 755 F.3d at 139 (“[E]ven if we assumed it were necessary to maintain a complete

copy of the hard drive solely to authenticate evidence responsive to the original warrant,

that does not provide a basis for using the mirror image for any other purpose.”). Id. at

138 (“[T]he Government clearly violated Ganias’s Fourth Amendment rights by retaining

the files for a prolonged period of time and then using them in a future criminal investiga-

tion.” (emphasis added)). Id. at 139 (“Because the Government has demonstrated no le-

gal basis for retaining the non-responsive documents, its retention and subsequent search of

those documents were unconstitutional.” (emphasis added)); id. at 141 (“We conclude

that the Government violated Ganias’s Fourth Amendment rights by seizing and indefi-

nitely retaining non-responsive computer records, and then searching them when it later de-

veloped probable cause.” (emphasis added)).

88 Id. at 139.

89 See W

ILLIAM J. CUDDIHY, THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING

602–1791, at 233 (2009). Thus, a warrant for stolen sheep in 1749 instructed the local

constable to “diligently search every suspected House and Place within your Parish, which

you and the . . . [owner of the sheep] shall think convenient to search.” Id. (citations

omitted). A 1661 warrant authorized the executive “to make diligent

search . . . throughout the whole town of Milford and the precincts thereof . . . ; and this

to be in all dwelling houses, barnes or other buildings whatsoever, and vessels in the har-

bor.” Id. at 234–36 (citations omitted).

90 See, e.g., United States v. Stefonek, 179 F.3d 1030, 1032-33 (7th Cir. 1999) (rejecting a

warrant permitting seizure of “evidence of crime” as an impermissible general warrant).

91 See Ganias, 755 F.3d at 139; Recent Cases, Fourth Amendment—Search and Seizure and Evi-

dence Retention—Second Circuit Creates a Potential “Right to Deletion” of Imaged Hard Drives.—

948 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

as an impossible hurdle.

So, perhaps the panel’s answer is broadly

the right answer: maybe the Fourth Amendment bans even relatively

small digital time machines, no matter how useful, no matter how

regulated, and no matter how democratically conceived and applied.

The government can retain the data for its original purposes as long

as it must, but cannot search the data for any other. Or, perhaps

such time machines are only permissible where government need is

at its highest, such as for purposes of national security, or where the

retention was pursuant to a carefully structured—and fairly inclu-

sive—legislative authorization. I will return to these questions below.

The immediate point is merely to highlight that digital evidence has

made these questions increasingly pressing.

The Supreme Court came to the same realization when it consid-

ered searches of cell phones incident to lawful arrest.

B. Riley and Searches of Cell Phones

David Riley was stopped for a minor traffic infraction, his car was

searched pursuant to impoundment, and he was arrested for illegally

possessing two handguns found therein.

As police are permitted to

do as a routine incident of any lawful arrest,

officers searched Riley’s

person and found a smartphone in his pocket.

A search of that

phone onsite and a couple of hours later at the station yielded rele-

vant evidence in the form of incriminating text messages, videos, and

images.

The Supreme Court consolidated Riley’s case with that of Brima

Wurie, who was arrested following an apparent drug sale.

At the po-

lice station, officers seized two phones from his person, and one of

them—a flip phone—continued to receive calls from a number the

phone identified as “my house.”

Officers opened the phone and

accessed the call log, thereby obtaining the phone number associated

with these calls.

The Court resoundingly rejected both searches:

United States v. Ganias, 755 F.3d 125 (2d Cir. 2014)., 128 HARV. L. REV. 743, 748–50

(2014).

92 Ganias, 755 F.3d at 139.

93 Riley v. California, 134 S. Ct. 2473, 2480 (2014).

94 United States v. Robinson, 414 U.S. 218, 235–36 (1973).

95 Riley, 134 S. Ct. at 2480.

96 Id. at 2480–81.

97 Id. at 2481.

98 Id.

99 Id.

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 949

Modern cell phones are not just another technological convenience.

With all they contain and all they may reveal, they hold for many Ameri-

cans “the privacies of life.” [quoting Boyd v. United States, 116 U.S. 616,

630 (1886)] The fact that technology now allows an individual to carry

such information in his hand does not make the information any less

worthy of the protection for which the Founders fought. Our answer to

the question of what police must do before searching a cell phone seized

incident to an arrest is accordingly simple—get a warrant.

100

Established doctrine would allow similar searches of non-digital

containers immediately associated with an arrestee’s person, includ-

ing any found in the same pocket as Riley’s phone.

101

So, why did all

nine Justices reject these mobile phone searches? Lacking both

precedent and any “precise guidance from the founding era,”

102

the

Court had to make its own assessment of what constitutes an “unrea-

sonable” search,

103

and that is done “by assessing, on the one hand,

the degree to which it intrudes upon an individual’s privacy and, on

the other, the degree to which it is needed for the promotion of legit-

imate governmental interests.”

104

The governmental interests motivating searches incident to ar-

rest—officer safety and evidence preservation

105

—are not particularly

relevant to this Article. But, very briefly, what swayed the Court was

that the interests are generally less significant in the digital context.

106

As for officer safety, there is no possibility the digital data will harm

the arresting officers, unlike, say, a surreptitious knife or razor

blade.

107

As for the remote possibility the data would inform officers

of indirect harm—for example, that dangerous confederates were en

route—the Court properly held this to be a case-specific exigent cir-

100 Id. at 2494–95; see also id. at 2495 (Alito, J., concurring in part and in the judgment but

expressing reservations with the majority’s limiting theory of search incident to arrest and

expressing a willingness to reconsider if legislatures lead the way); United States v.

Camou, 773 F.3d 932, 941–43 (9th Cir. 2014) (extending Riley’s protection of mobile

phones to exempt them from the automobile exception to the warrant requirement).

101 See Riley, 134 S. Ct. at 2484 (discussing United States v. Chadwick, 433 U.S. 1, 15 (1977),

which distinguished between searches of items “immediately associated with the person of

the arrestee” and those otherwise within the arrestee’s reach (quoting Chadwick, 433 U.S.

at 15)).

102 Riley, 134 S. Ct. at 2484 (recognizing that not only was there no equivalent at the time of

the founding, but that even the less sophisticated flip-phones “are based on technology

nearly inconceivable just a few decades ago”).

103 Id. at 2482 (“As the [Fourth Amendment] text makes clear, the ultimate touchstone of

the Fourth Amendment is reasonableness.” (quoting Brigham City v. Stuart, 547 U.S. 398,

403 (2006)) (internal quotation marks omitted)).

104 Id. at 2484 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)).

105 Id. at 2483 (explaining the genesis of these twin aims).

106 See id. at 2485–88 (applying the criteria to mobile phones).

107 Id. at 2485.

950 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

cumstance sufficiently accounted for by that doctrine.

108

In other

words, it will be the exception, not the rule. Similarly, there is little

risk of evidence destruction once the officers seize the mobile phone,

as even the typically negligible possibility of the device being remotely

wiped can be countered with a Faraday bag, the cheap version of

which is wrapping the phone in aluminum foil.

109

More importantly for the purposes of this Article, the privacy in-

terest in digital data is very significant, both in terms of quality and

quantity.

110

While the government urged “that a search of all data

stored on a cell phone is ‘materially indistinguishable’ from” searches

of wallets and purses, to the Court, “[t]hat is like saying a ride on

horseback is materially indistinguishable from a flight to the

moon.”

111

As for quality, “[A] cell phone collects in one place many distinct

types of information—an address, a note, a prescription, a bank

statement, a video—that reveal much more in combination than any

isolated record.”

112

As for quantity, a “phone’s capacity allows even

just one type of information to convey far more than previously pos-

sible.”

113

Such is the marvel of digital data and its modern storage.

114

Indeed, “it is no exaggeration to say that many of the more than 90%

of American adults who own a cell phone keep on their person a digi-

tal record of nearly every aspect of their lives—from the mundane to

the intimate.”

115

It did not come at government behest, as Justice

Jackson feared in 1948, but it came nonetheless.

116

Each such person

is carrying a time machine, and the Court has now recognized how

especially private are the digital data contained therein. As the Court

108 Id. at 2485–86.

109 Id. at 2486–88. The government also raised, for the first time before the Supreme Court,

that the officers might be able to immediately access the data before the phone “locks,” at

which point encryption might render the data unreachable even pursuant to a valid war-

rant. Id. at 2486–87. The Court had two responses. First, officers who encounter an un-

locked phone and who have probable cause can perhaps take the minimal steps necessary

to turn off the auto-locking feature. Id. at 2487–88. Moreover, this situation—like the

possibility of dangerous confederates texting of their approach—is sufficiently unlikely

that it is otherwise properly handled via exigent circumstances. Id. at 2487.

110 Id. at 2489.

111 Id. at 2488.

112 Id. at 2489 (explaining that mobile phones “could just as easily be called cameras, video

players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps,

or newspapers”).

113 Id.

114 See Henderson, supra note 11, at 700–03 (chronicling the massive increase in digital stor-

age).

115 Riley, 134 S. Ct. at 2490.

116 See supra note 12.

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 951

recognized, a single mobile phone will often contain more infor-

mation than an entire home.

117

Time machines are useful like that.

In the words of the Court, “In the cell phone context, . . . it is reason-

able to expect that incriminating information will be found on a

phone regardless of when the crime occurred.”

118

So, while Riley perhaps left things unanswered that it could have

addressed,

119

it made very clear that when it comes to the Fourth

Amendment, digital is different. And while compelled government

access therefore required a warrant, this does not necessarily mean

the Court is generally averse to the existence of digital time ma-

chines. The Court’s most recent Fourth Amendment decision, which

considered records that could be either analog or digital, contains a

facially surprising claim that is a nod to time machines’ utility.

C. Patel and Searches of Hotel Registries

City of Los Angeles v. Patel is a case about mini, government-

mandated time machines in the form of hotel guest registries.

120

provision of the Los Angeles Municipal Code requires that hotels

record and maintain information about their guests, including name

and address, vehicle license plate of any car parked on the premises,

and method of payment.

121

Under certain circumstances additional

identification information must be recorded, such as when a guest

pays by cash, rents a room without a reservation, or stays for fewer

117 Riley, 134 S. Ct. at 2491. The Court had previously rejected the claim that officers could

search an entire home incident to arrest. Chimel v. California, 395 U.S. 752, 753, 755,

768 (1969); see also 381 Search Warrants Directed to Facebook, Inc. v. New York County

Dist. Attorney’s Off., 2015 WL 4429025, at *7 (N.Y.S.3d July 21, 2015) (“Our holding to-

day [that there is neither a constitutional nor statutory right to challenge of a search war-

rant other than a defendant’s motion to suppress] does not mean that we do not appre-

ciate Facebook’s concerns about the scope of the bulk warrants issued here or about the

District Attorney’s alleged right to indefinitely retain the seized accounts of the un-

charged Facebook users. Facebook users share more intimate personal information

through their Facebook accounts than may be revealed through rummaging about one’s

home. These bulk warrants demanded ‘all’ communications in 24 broad categories from

the 381 targeted accounts. Yet, of the 381 targeted Facebook user accounts only 62 were

actually charged with any crime.”).

118 Riley, 134 S. Ct. at 2492.

119 See generally Ric Simmons, The Missed Opportunities of Riley v. California, 12 O

HIO ST. J.

CRIM. L. 253 (2014) (arguing that the Riley Court did not “repair the critically flawed

search incident to arrest doctrine” or “provide useful guidance for law enforcement offic-

ers faced with emerging technologies”).

120 135 S. Ct. 2443, 2447–48 (2015).

121 L.A.,

CAL., MUN. CODE § 41.49(2)(a) (2008), http://clkrep.lacity.org/onlinedocs/2006/

06-0125-s1_ord_179533.pdf.

952 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

than twelve hours.

122

Registry information must be maintained for a

period of ninety days, and must be made available upon officer re-

quest.

123

As the recent publicity regarding the hack of cheating or

“adultery” website Ashley Madison demonstrates,

124

it is not hard to

imagine some of the privacy interests implicated by knowledge of ho-

tel stays.

125

At the same time, such a recordkeeping requirement is hardly

novel, and the hotels did not challenge it.

126

A group of hotel opera-

tors did, however, challenge the provision requiring that the registry

“shall be made available to any officer of the Los Angeles Police De-

partment for inspection.”

127

They contended such unrestrained ac-

cess violated their Fourth Amendment rights, and a closely divided

Supreme Court agreed.

128

According to the five Justice majority, the

officer demand requirement is unconstitutional because it offers no

opportunity for pre-compliance legal challenge,

129

essentially combin-

ing the ease of an administrative subpoena with the effectiveness of a

warrant. Patel is an important opinion, because it permits meaningful

facial challenges under the Fourth Amendment,

130

and because it lim-

122 Id. § 41.49(4).

123 Id. § 41.49(3)(a).

124 See, e.g., Dino Grandoni, Ashley Madison, a Dating Website, Says Hackers May Have Data on

Millions, N.Y.

TIMES (July 20, 2015), http://www.nytimes.com/2015/07/21/technology/

hacker-attack-reported-on-ashley-madison-a-dating-service.html; Emma Johnson, Ashley

Madison Hack Would Mean ‘Boon for Divorce Lawyers and Marriage Therapists,’ F

ORBES (July

20, 2015), http://www.forbes.com/sites/emmajohnson/2015/07/20/ashley-madison-

hack-would-mean-boon-for-divorce-lawyers-and-marriage-therapists/.

125 See, e.g., Tina Kelly, Mayflower Mystery: Room 871, Where Are You?, N.Y.

TIMES (Mar. 20,

2008), http://cityroom.blogs.nytimes.com/2008/03/20/mayflower-mystery-room-871-

where-are-you/ (detailing how Governor Eliot Spitzer enjoyed the services of a prostitute

in The Mayflower’s room 871); Sarah Kershaw & Michael Powell, Just a Hotel? For Some,

It’s an Adventure, N.Y.

TIMES, March 20, 2008, at G1 (generally describing prostitution at

the Mayflower Hotel).

126 Patel, 135 S. Ct. at 2454 (“Respondents have not challenged and nothing in our opinion

calls into question those parts of § 41.49 that require hotel operators to maintain guest

registries containing certain information.”).

127 L.A.,

CAL. MUN. CODE, supra note 121, at § 41.49(3)(a).

128 Patel, 135 S. Ct. at 2451.

129 Id.

130 Id. at 2449 (“We first clarify that facial challenges under the Fourth Amendment are not

categorically barred or especially disfavored.”). Even with facial challenges theoretically

available, they could never be successful if defeated by the possibility that an officer pos-

sessing a valid warrant could make the records request, that an officer in an emergency could

make the records request, or that the subject of a request could consent. Fortunately, the

Court recognized an unrestricted access statute can be facially unconstitutional regardless

of those possibilities, because they are properly understood as independent from the

grounds of a statutory access not requiring any of them. Id. at 2450–51. Cf. id. at 2464–66

(Alito, J., dissenting) (arguing otherwise).

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 953

its what has been a nebulous “closely regulated industry exception.”

131

But what is of interest for this Article is the Court’s dictum regarding

deterrence.

The Court assumed, without deciding, that the government pur-

pose for the registry program was a “special need” outside of ordinary

crime control, thus lessening the Fourth Amendment burden.

132

Since the ordinance was clearly aimed at solving crime, it is hard to

imagine what this special need would be. Although the boundaries

have always been unclear, in the automobile context, for example,

the Court has differentiated roadblocks aimed at preventing highway

fatalities and carnage (a special need), from those aimed at interdict-

ing drugs (ordinary crime control).

133

Officers accessing the historic

registry were unlikely to prevent imminent threatened harm akin to

that posed by drunk drivers, as opposed to finding the clues necessary

to prosecute past offenses. This seems true by definition for a registry

dating back three months.

Yet the Court assumed a special need, namely deterring criminali-

ty.

134

It seems hard to imagine deterrence of criminality can be a

meaningful special need: deterrence is not the reason for legitimate

police investigation that constitutes a search or a seizure, but instead

is the happy—albeit very important—byproduct of investigating actu-

al crime. In other words, surely police cannot routinely make war-

rantless entry into homes and claim the “special need” of deterring

crimes that might otherwise be committed therein. Instead, when

law enforcement officers enter homes pursuant to lawful warrants or

exceptions thereto, and people learn of those events including sub-

131 Id. at 2454–56. The Court has declared four closely regulated industries, for which it

permits systems of routine, suspicionless inspection: liquor distribution, firearms distri-

bution, mining, and automobile junkyards. Id. at 2454. Before Patel, it was unclear

whether a legislature could effectively get around the Fourth Amendment: subject a busi-

ness to sufficient regulation, such that it is pervasively regulated, and now the Fourth

Amendment has little play. The Court majority signaled this would not be possible, find-

ing the exception to apply only when something “inherent in the operation of [the busi-

ness] poses a clear and significant risk to the public welfare.” Id. This remains somewhat

nebulous, especially given the disparate existing four categories, but at least it is a more

limited sort of nebulous.

132 Id. at 2452.

133 See City of Indianapolis v. Edmond, 531 U.S. 32, 48 (2000) (striking down drug interdic-

tion checkpoints); Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 455 (1990) (allow-

ing sobriety checkpoints).

134 Patel, 135 S. Ct. at 2452 (“Here, we assume that the searches authorized by § 41.49 serve a

‘special need’ other than conducting criminal investigations: They ensure compliance

with the recordkeeping requirement, which in turn deters criminals from operating on

the hotels’ premises.”).

954 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

sequent prosecutions, they are deterred from themselves engaging in

such criminality.

So, why the odd assertion of deterrence as a special need? Pre-

sumably because of the intuition that the registry requirement, like

other and more significant time machines, is an effective—and per-

haps smart—way to go after criminal behavior. But even if that might

be so, the Court was right to find problematic the complete absence

of access restrictions given the privacy interests at stake. Indeed, it is

worth stepping back to broadly consider these interests of infor-

mation privacy before contemplating what they implicate for investi-

gatory time machines.

II.

PRIVACY

As integral as privacy is to most of our lives—or at least as integral

as I believe it is to mine—there is considerable controversy and con-

fusion as to its definition, including as to whether it is a state of being

or a right.

135

In other words, is “perfect” privacy achieved only when

nobody has any information about and access to my person (which

sounds rather awful), or also when I have complete control over

those modes of access but have volitionally granted them in certain

amounts (which sounds rather utopian)?

136

Learned philosophical

minds have debated these concepts for years and presumably will for

as long as there are philosophers to debate. My less philosophically

tutored mind finds useful—and for criminal procedure purposes

seemingly sufficient—the construct that information privacy is the abil-

ity of a person to control what information about her is given to oth-

ers, and for what purposes.

137

Such a control construct was most no-

135 See, e.g., Ruth Gavison, Privacy and the Limits of Law, 89 YALE L.J. 421, 425–28 (1980) (argu-

ing privacy is a “condition of life,” not a claim or form of control). See generally

HILOSOPHICAL DIMENSIONS OF PRIVACY: AN ANTHOLOGY (Ferdinand David Schoeman

ed., 1984); Daniel J. Solove, A Taxonomy of Privacy, 154 U.

PA. L. REV. 477 (2006); Daniel J.

Solove, Conceptualizing Privacy, 90 C

AL. L. REV. 1087 (2002).

136 See Gavison, supra note 135, at 428.

137 See ABA

STANDARDS FOR CRIMINAL JUSTICE: LAW ENFORCEMENT ACCESS TO THIRD PARTY

RECORDS 49–52, 57–58 (3d ed. 2013); Stephen E. Henderson, Expectations of Privacy in So-

cial Media, 31 M

ISS. C. L. REV. 227, 229–34 (2012). Information privacy can be contrasted

with decision privacy, the latter encompassing decisions about bodily autonomy like what

medical treatment to receive. See U.S. Dep’t of Justice v. Reporters Comm. for Freedom

of the Press, 489 U.S. 749, 762 (1989) (“As we have pointed out before, ‘[t]he cases some-

times characterized as protecting ‘privacy’ have in fact involved at least two different

kinds of interests. One is the individual interest in avoiding disclosure of personal mat-

ters, and another is the interest in independence in making certain kinds of important

decisions.’” (quoting Whalen v. Roe, 429 U.S. 589, 598–600 (1977))).

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 955

tably articulated by Alan Westin

138

and Charles Fried,

139

and has been

recognized by the Supreme Court.

140

So understood, privacy can be seen as a constitutive element of

human autonomy, or as a key element in the identity formation and

mental freedom that is central to a fully realized autonomy.

141

In the

words of Thomas Nagel, “The boundary between what we reveal and

what we do not, and some control over that boundary, are among the

most important attributes of our humanity.”

142

Without privacy, peo-

ple will engage in harmful self-censorship not only in what they will

say and in what they will do, but even in what they will think as they

internalize an awareness that they are always watched.

143

And the abil-

138 See ALAN F. WESTIN, PRIVACY AND FREEDOM 7 (1967) (“Privacy is the claim of individuals,

groups, or institutions to determine for themselves when, how, and to what extent infor-

mation about them is communicated to others.”). “Most definitions of privacy agree on a

core concept: that privacy is the claim of an individual to determine what information

about himself or herself should be known to others. This also involves when such infor-

mation will be communicated or obtained and what uses will be made of it by others.”

LAN F. WESTIN, HISTORICAL PERSPECTIVES ON PRIVACY: FROM THE HEBREWS AND GREEKS

TO THE

AMERICAN REPUBLIC 4 (presented and distributed at the 2009 Privacy Law Schol-

ars Conference, and quoted with permission).

139 See Charles Fried, Privacy, 77 Y

ALE L.J. 475, 493 (1968) (“[P]rivacy [i]s that aspect of social

order by which persons control access to information about themselves.”). Others like to

frame privacy as a right to deprive. See, e.g., Jeffrey Reiman, Driving to the Panopticon: A

Philosophical Exploration of the Risks to Privacy Posed by the Highway Technology of the Future, 11

ANTA CLARA COMPUTER & HIGH TECH. L.J. 27, 32 (1995). Others frame it is a limitation

on others’ access. See, e.g., Gavison, supra note 135, at 423 (“Our interest in privacy, I ar-

gue, is related to our concern over our accessibility to others: the extent to which we are

known to others, the extent to which others have physical access to us, and the extent to

which we are the subject of others’ attention. This concept of privacy as a concern for

limited accessibility enables us to identify when losses of privacy occur.”).

140 See Reporters Comm., 489 U.S. at 763 (“[B]oth the common law and the literal understand-

ings of privacy encompass the individual’s control of information concerning his or her

person.”). The Court rejected a more “cramped notion of personal privacy” relying upon

secrecy. Id.

141 See H

ELEN NISSENBAUM, PRIVACY IN CONTEXT: TECHNOLOGY, POLICY, AND THE INTEGRITY

SOCIAL LIFE 81–82 (2010). Nissenbaum’s insightful gathering and characterization of

philosophies is highly recommended. See id. at 67–78; see also Thomas P. Crocker, From

Privacy to Liberty: The Fourth Amendment After Lawrence, 57 UCLA L. R

EV. 1, 23–25 (2009)

(explaining autonomy through a privacy lens).

142 Thomas Nagel, Concealment and Exposure, 27 P

HIL. & PUB. AFF. 3, 4 (1998).

143 See N

ISSENBAUM, supra note 141, at 75–76; Margot E. Kaminski & Shane Witnov, The Con-

forming Effect: First Amendment Implications of Surveillance, Beyond Chilling Speech, 49 U.

RICH.

L. REV. 465, 483–93 (2015); Reiman, supra note 139, at 41–42. Even merely a reminder of

the concept of surveillance affects behavior. See, e.g., Melissa Bateson et al., Cues of Being

Watched Enhance Cooperation in a Real-World Setting, 2 B

IOLOGY LETTERS 412 (2006),

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1686213/ (finding that people contrib-

uted nearly three times as much for drinks when an image of human eyes was displayed

nearby); Terence C. Burnham & Brian Hare, Engineering Human Cooperation, 18 H

UM.

NATURE 88, 99 (2007), http://link.springer.com/article/10.1007%2Fs12110-007-9012-2

(finding an increase in simulated public good behavior when an image of a robot with

956 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

ity to think freely and critically is essential to full development of

one’s moral character.

144

This is not to deny, of course, that social

pressures can be beneficial ones,

145

but instead only to recognize that

they can also be debilitating in the extreme.

146

Furthermore, without privacy people are (at best) stunted in their

ability to form meaningful and diverse relationships, as those rela-

tionships depend upon a volitional, gradual, and granular mutual

sharing of information.

147

As Nagel explains, “selective intimacy per-

mits some interpersonal relations to be open to forms of exposure

that are needed for the development of a complete life. No one but

a maniac will express absolutely everything to anyone, but most of us

human eyes was displayed); Max Ernest-Jones et al., Effects of Eye Images on Everyday Cooper-

ative Behavior: A Field Experiment, 32 E

VOLUTION & HUM. BEHAV. 172, 176 (2011),

https://www.staff.ncl.ac.uk/daniel.nettle/ernestjonesnettlebateson.pdf (finding that

people littered half as often when an image of human eyes was displayed nearby); see also

ICHEL FOUCAULT, DISCIPLINE AND PUNISH 195–228 (Alan Sheridan trans., 1977) (recog-

nizing the internal significance of feeling watched); C

HRISTOPHER SLOBOGIN, PRIVACY AT

RISK 92–95 (2007) (building off Foucault’s work and others to describe the impact of los-

ing “public anonymity”).

In the words of Edward Bloustein, “[t]he man who is compelled to live every minute

of his life among others and whose every need, thought, desire, fancy or gratification is

subject to public scrutiny, has been deprived of his individuality and human dignity.

Such an individual merges with the mass. His opinions, being public, tend never to be

different; his aspirations, being known, tend always to be conventionally accepted ones;

his feelings, being openly exhibited, tend to lose their quality of unique personal warmth

and to become the feelings of every man. Such a being, although sentient, is fungible; he

is not an individual.” Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An An-

swer to Dean Prosser, 39 N.Y.U.

L. REV. 962, 1003 (1964). Or in the words of Ruth Gavison,

if subjected to a world without privacy, “[w]e would probably try hard to suppress our

daydreams and fantasies once others had access to them. We would try to erase from our

minds everything we would not be willing to publish, and we would try not to do anything

that would make us likely to be feared, ridiculed, or harmed. There is a terrible flatness

in the person who could succeed in these attempts.” Gavison, supra note 135, at 443.

144 See Jeroen van den Hoven, Information Technology, Privacy, and the Protection of Personal Data,

in I

NFORMATION TECHNOLOGY AND MORAL PHILOSOPHY 301, 315–16 (Jeroen van den

Hoven & John Weckert eds., 2008); N

ISSENBAUM, supra note 141, at 78.

145 See William H. Simon, Rethinking Privacy, B

OS. REV. (Oct. 20, 2014),

http://bostonreview.net/books-ideas/william-simon-rethinking-privacy-surveillance

(“The second trope of the paranoid style is the portrayal of virtually all tacit social pres-

sure as insidious.”).

146 See, e.g, Azar Nafisi, Surveillance States, N.Y.

TIMES (June 11, 2015), http://www.

nytimes.com/2015/06/14/books/review/surveillance-states.html (“It stays with you, that

fear. It burrows under the skin. Even after you escape and are thousands of miles or

many years away, you will still sometimes feel you are being watched. Something within

you has been permanently damaged by the terrible knowledge of the human capability

for cruelty and your own weaknesses in the face of it.”).

147 See N

ISSENBAUM, supra note 141, at 84; JEFFREY ROSEN, THE UNWANTED GAZE: THE

DESTRUCTION OF PRIVACY IN AMERICA 89, 209–18 (2000); Fried, supra note 139, at 477;

Gavison, supra note 135, at 450. See generally I

RWIN ALTMAN & DALMAS A. TAYLOR, SOCIAL

PENETRATION: THE DEVELOPMENT OF INTERPERSONAL RELATIONSHIPS (1973).

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 957

need someone to whom we can express a good deal that we would

not reveal to others.”

148

As Ferdinand Shoeman explains,

“[i]nformation appropriate in the context of one relationship may

not be appropriate in another.”

149

Indeed, devoid of intended and

appropriate context, information can present a vastly incomplete if

not completely inaccurate assessment.

150

A spouse, for example,

should have sufficient knowledge of a partner that she can place any

new information in nearly its correct context, but a stranger, ac-

quaintance, or even fairly good friend might totally misperceive its

relevance. As Andrew Taslitz has noted, not only does other-

assessment have practical manifestations (e.g., loss of a job oppor-

tunity), but psychologically we hold other-assessment dear.

151

Without privacy, people thus have less fully developed characters

and relationships, which in turn are the constituent elements of a ro-

bust marketplace of ideas, associations, and religions.

152

In other

words, privacy may be critical to the individual in a manner necessary

to identity formation and to robust small-scale personal relationships,

but it is ultimately of collective societal importance, especially to a de-

mocracy.

153

Thus, it is not surprising that Alan Westin found a corre-

lation between political philosophy and privacy throughout western

civilization.

154

And there are other ramifications. Without privacy

there is increased identity theft, stalking, and other information-

148 Nagel, supra note 142, at 10.

149 Ferdinand Schoeman, Privacy and Intimate Information, in P

HILOSOPHICAL DIMENSIONS,

supra note 135, at 403, 408.

150 See W

ILLIAM JAMES, THE PRINCIPLES OF PSYCHOLOGY (1890), http://psychclassics.

asu.edu/James/Principles/prin10.htm (“Properly speaking, a man has as many social

selves as there are individuals who recognize him and carry an image of him in their

mind. To wound any one of these his images is to wound him. But as the individuals who

carry the images fall naturally into classes, we may practically say that he has as many dif-

ferent social selves as there are distinct groups of persons about whose opinion he cares.

He generally shows a different side of himself to each of these different groups.” (empha-

sis omitted)).

151 Andrew E. Taslitz & Stephen E. Henderson, Reforming the Grand Jury to Protect Privacy in

Third Party Records, 64 A

M. U. L. REV. 195, 218–19 (2014).

152 See N

ISSENBAUM, supra note 141, at 86; PRISCILLA M. REGAN, LEGISLATING PRIVACY 221

(1995).

153 See Julie E. Cohen, What Privacy Is For, 126 H

ARV. L. REV. 1904, 1912–18 (2013) (arguing

that diminished privacy shrinks the capacity for democratic self-government); Gavison,

supra note 135, at 455 (“Privacy is also essential to democratic government because it fos-

ters and encourages the moral autonomy of the citizen, a central requirement of a de-

mocracy.”); Paul M. Schwartz, Privacy and Participation: Personal Information and Public Sec-

tor Regulation in the United States, 80 I

OWA L. REV. 553, 560–63 (1995).

154 See W

ESTIN, HISTORICAL PERSPECTIVES, supra note 138, at 4–5, 9.

958 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

based or assisted crimes.

155

And given asymmetries of power, distor-

tions in information privacy tend to run solely in one direction, or at

least are not distributed equally, benefiting some at the costs of oth-

ers.

156

Of course, to assert that information privacy is about control is not

to say that one must exercise absolute control. Most rights, and per-

haps all rights, are not absolute, and in this case absolute control is

unthinkable. First, nobody would benefit from exercising control to

achieve absolute seclusion.

157

And society could not permit absolute

control, not only because it would have too great a cost to the social

order, but also because once any information about me is known to

another person, my right of privacy control runs up against their

right of free expression.

158

Fortunately, people innately understand this and rarely, if ever,

expect absolute control. But they do wish to exercise some control,

even as they are becoming increasingly disillusioned regarding their

ability to do so.

159

As sociologist Christena Nippert-Eng explains

based upon her recent studies, “[I]t became clear that what I now

think of as the process of ‘selective concealment and disclosure’ plays

an important role in how we try to achieve privacy. This is the daily

activity of trying to deny or grant varying amounts of access to our

155 See NISSENBAUM, supra note 141, at 78; Van den Hoven, supra note 144, at 311–12 (“in-

formation-based harm”).

156 See N

ISSENBAUM, supra note 141, at 79; Van den Hoven, supra note 144, at 312–13 (“in-

formational inequality”).

157 See Gavison, supra note 135, at 440 (“We start from the obvious fact that both perfect pri-

vacy and total loss of privacy are undesirable. Individuals must be in some intermediate

state—a balance between privacy and interaction—in order to maintain human relations,

develop their capacities and sensibilities, create and grow, and even to survive.”).

158 Cf. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 496–97 (1975) (striking down a state

statute prohibiting the publication of a rape victim’s name).

159 See M

ARY MADDEN ET AL., PEW RESEARCH CENTER, PUBLIC PERCEPTIONS OF PRIVACY AND

SECURITY IN THE POST-SNOWDEN ERA 30 (2014), http://www.pewinternet.org/files/

2014/11/PI_PublicPerceptionsofPrivacy_111214.pdf (finding “91% of [American] adults

‘agree’ or ‘strongly agree’ that ‘consumers have lost control over how personal infor-

mation is collected and used by companies.’”); Peter H. Schwartz et al., Patient Preferences

in Controlling Access to Their Electronic Health Records: A Prospective Cohort Study in Primary

Care, 30 J.

GEN. INTERNAL MED., S25, S27 (2014) (finding almost half of patients will hide

certain health information from their health-care providers if given the choice). The

Schwartz study is perhaps especially interesting, because as Amitai Etzioni has pointed

out, merely asking a person if she would like more privacy is akin to asking whether she

would like more health; better information requires recognizing that more of ‘x’ might

have some other cost. Amitai Etzioni, The Limits of Privacy, in C

ONTEMPORARY DEBATES IN

APPLIED ETHICS 253, 253 (Andrew I. Cohen & Christopher Heath Wellman eds., 2005).

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 959

private matters to specific people in specific ways.”

160

Nippert-Eng

unsurprisingly found disparate people each trying to achieve their

preferred balance.

161

Thus, while any replacement is far less crisp and easy, I have long

been a critic of the Fourth Amendment’s third party doctrine, which

tries to artificially categorize all information as either totally secret

(purely private) or freely available to law enforcement (effectively

purely accessible).

162

Attempting to force people to maintain absolute

secrecy in order to have any degree of constitutional protection is un-

realistic and counter-productive.

163

But what does a control theory of information privacy have to say

about investigatory time machines? Obviously at least as to govern-

ment created ones, there is a serious tension, and it is a tension that

goes to the heart of privacy’s motivations. Can we fully develop as

human beings, with the necessarily divergent ideas and willingness to

express them that a thriving democracy requires, if the government is

160 CHRISTENA NIPPERT-ENG, ISLANDS OF PRIVACY 2 (2010). Thus, consistent with a control

theory, “The goal is to achieve selectivity in both [disclosure and concealment]—to care-

fully choose exactly what is disclosed and concealed, to whom, and how.” Id. at 7. When

people were individually interviewed and asked the very general question, “What does

privacy mean to you?”, a large majority in some manner described the control theory. See

id. (noting that the answers of forty-five of fifty-seven participants could be so classified);

see generally M

ARY MADDEN ET AL., PEW RESEARCH CENTER, AMERICANS’ ATTITUDES ABOUT

PRIVACY, SECURITY AND SURVEILLANCE (2015), http://www.pewinternet.org/files/

2015/05/Privacy-and-Security-Attitudes-5.19.15_FINAL.pdf (finding that Americans want

to control who can access their personal information but doubt they are currently able to

do so).

161 N

IPPERT-ENG, supra note 160, at 8 (“For the people in this study [] ‘good’ privacy exists

when the things they want to be private are as private as they want them to be. It’s a won-

derfully subjective, relativistic standard . . . . [C]ontrol over the amount and type of dis-

closure and concealment is what really defines their assessment of the situation.” (em-

phasis omitted)); see also id. at 5 (positing “[w]hen we think of privacy [] what we really

think of is a condition of relative inaccessibility. Any point on the scale has both a degree

of privateness and a degree of publicness associated with it” (emphasis omitted)).

162 See generally Stephen E. Henderson, After United States v. Jones, After the Fourth Amendment

Third Party Doctrine, 14 N.C.

J.L. & TECH 431 (2013); Stephen E. Henderson, The Timely

Demise of the Fourth Amendment Third Party Doctrine, 96 I

OWA L. REV. BULL. 39 (2011) [here-

inafter Timely Demise]; Stephen E. Henderson, Beyond the (Current) Fourth Amendment: Pro-

tecting Third-Party Information, Third Parties, and the Rest of Us Too, 34 P

EPP. L. REV. 975

(2007); Stephen E. Henderson, Learning from All Fifty States: How to Apply the Fourth

Amendment and Its State Analogs to Protect Third Party Information from Unreasonable Search, 55

ATH. U. L. REV. 373 (2006); Stephen E. Henderson, Nothing New Under the Sun? A Tech-

nologically Rational Doctrine of Fourth Amendment Search, 56 M

ERCER L. REV. 507 (2005)

[hereinafter Nothing New].

163 See N

IPPERT-ENG, supra note 160, at 5 (“[A]cquiring privacy is only part of the problem

. . . . The totality of the task is to achieve a balance between the need and desire for both

privacy and publicity—for a certain degree of concealment and disclosure, for denying

and granting access to others.” (emphasis omitted)).

960 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

always watching? No. Of course, in even the most totalitarian re-

gimes there have proved to be some persons who exercise unpopular

autonomy, but then truly pervasive technology like we have today has

never before been available. And, more importantly, as Ruth Gavison

explains, “Even if we grant that privacy may not be a necessary condi-

tion for autonomy for all, . . . it is enough to justify it as a value that

most people may require it. We are not all giants, and societies

should enable all, not only the exceptional, to seek moral autono-

my.”

164

An ideal democracy requires thoughtful participation from

far more than just a few.

Thus, there is good reason to be extremely skeptical of any gov-

ernment-mandated time machines, and outside of the particular in-

stances in which they have historically been used (e.g., banking,

pharmaceuticals, and hotels), we might do best to forbid them,

whether constitutionally or otherwise. Indeed, it might be wise to re-

consider even those we have historically permitted; the Supreme

Court in Patel struck down a 116-year-old reporting ordinance.

165

But

at the very least, a drone hovering high overhead that records all pub-

lic movements seems problematic, as do mammoth databases of digi-

tal information that can later be searched. On the other hand,

broad-based surveillance does have benefits. More inclusive surveil-

lance benefits from a genuine check in the political process, and can

more evenly distribute the costs and provide superior accountabil-

ity.

166

So, is it possible to have our cake and eat it too? If there are

sufficiently robust access, use, and disclosure limitations, can they ev-

er ameliorate the very serious privacy concerns? I first address

whether such use restrictions could be found within the Fourth

Amendment, and then turn to the wisdom of their adoption in the

very limited context of police body cameras.

III.

FOURTH AMENDMENT USE RESTRICTIONS AND POLICE BODY

CAMERAS

In a prescient article from 1995, Harold Krent argued that—

whatever definitions of search and seizure are required to make it

happen—the uses to which law enforcement can put lawfully ac-

164 Gavison, supra note 135, at 450.

165 See City of Los Angeles v. Patel, 135 S. Ct. 2443, 2464 (2015) (Alito, J., dissenting).

166 See Simon, supra note 145 (“[B]road-reach electronic mechanisms have an advantage in

addressing the danger that surveillance will be unfairly concentrated on particular

groups; targeting criteria, rather than reflecting rigorous efforts to identify wrongdoers,

may reflect cognitive bias or group animus.”).

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 961

quired information should be governed by the Fourth Amendment’s

reasonableness requirement.

167

According to Krent, “Rapidly devel-

oping technology has thrust the use issue to the forefront: what the

government does with information may now threaten privacy more

than the collection itself.”

168

The Ganias Second Circuit panel adopt-

ed such a use restriction: even if it was permissible for investigators to

retain the nonresponsive computer data for such a long period, it was

not permissible to search through that data—to use that data—in a

new investigation, even pursuant to a newly obtained search war-

rant.

169

Although it is not clear that Krent would agree with this par-

ticular use limitation,

170

he recognized that generally such limits are

conducive to the control theory of information privacy: each differ-

ent use of the data interferes with a person’s ability to control for what

purposes information about her is utilized.

171

Neither the Ganias panel nor Krent argued that use restrictions

should be the sole Fourth Amendment restrictions: the original law

enforcement acquisition remains subject to traditional restraints. For

example, merely agreeing to limit use would of course not itself justi-

fy compulsory copying of Ganias’ hard drives. But there might be

circumstances when it is impossible to get the desired law enforce-

ment safety benefit without completely abandoning front-end acquisi-

tion restraints, as with broad scale, panvasive drone surveillance, or

with broad scale, panvasive internet surveillance for malware.

172

167 Harold J. Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment, 74

EX. L. REV. 49, 49–51, 51 n.14 (1995).

168 Id. at 51. Krent went on to argue for a more specific rule, namely that the only reasona-

ble uses are ones “disclosed or implicit at the time of the underlying seizure,” requiring

the state to “precommit to all uses of information and items seized.” Id. at 53; see id. at

85–92 (developing this proposed limitation).

169 See supra notes 84–92 and accompanying text; see also United States v. Davis, 690 F.3d 226,

246, 250 (4th Cir. 2012) (holding the warrantless DNA testing of lawfully seized items

from a non-arrestee to constitute an unreasonable Fourth Amendment search); Orin S.

Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Da-

ta, 48 TEX. TECH L. REV. 1 (2015) (arguing that limited use restrictions are plausible giv-

en the necessary over-seizure in the digital search context); cf. Commonwealth v. Arzola,

470 Mass. 809, 820 (Mass. 2015) (holding the DNA testing of lawfully seized items from

an arrestee did not constitute a Fourth Amendment search).

170 Krent would permit a later use when “the subsequent use would have itself legitimated

the initial search.” Krent, supra note 167, at 93. That would seem true of the later search

warrant in Ganias. However, as prescient as Krent’s article was in 1995, he did not con-

sider the unique nature of computer searches, which might (or might not) alter his con-

clusions.

171 Id. at 51 nn.14 & 18, 92 n.199.

172 Christopher Slobogin has coined the term “panvasive” “to capture the idea that modern

government’s efforts at keeping tabs on the citizenry routinely and randomly reach across

huge numbers of people, most of whom are innocent of any wrongdoing.” Christopher

962 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

each instance, assuming complete automation, the key privacy harm

seems to occur only upon human viewing, or use. Of course, this

does not mean the sole privacy harm occurs upon use. If human-

programmed algorithms are making decisions based upon content,

that seems a relevant use regardless of the lack of direct human ob-

servation.

173

And, as described above, knowing that all of our move-

ments, online or off, will be recorded for potential later perusal can

very meaningfully chill those actions. Jeremy Bentham long ago real-

ized that constant observation was not necessary in his Panopticon;

merely its potential was sufficient to achieve the same results.

174

Thus,

European courts have recently rejected requirements that internet

service providers retain information for defined periods of time.

175

So, we should be extremely cautious in accepting ex-post use and

dissemination controls as a substitute for—as opposed to a supple-

ment to—front-end acquisition controls. But as part of this calculus

we should recognize the benefits of broad access, including its more

uniform distribution and thus greater political accountability. As I

argued some ten years ago, whether the issue is DNA databanking or

a thermal scan of homes or a millimeter wave scan of persons (as now

takes place at airports), advanced notice and broad and uniform ap-

plicability trigger the protections of the political process in a way that

most contemporary policing does not, and this should factor into

Fourth Amendment reasonableness.

176

In this, I was building upon

Slobogin, Panvasive Surveillance, Political Process Theory, and the Nondelegation Doctrine, 102

EO. L.J. 1721, 1723 (2014).

173 See Henderson, Timely Demise, supra note 162, at 47–48 (responding to argument of Rich-

ard Posner); see also S

CHNEIER, supra note 15, at 130 (“Whether or not anyone actually

looks at our data, the very facts that (1) they could, and (2) they guide the algorithms

that do, make it surveillance.”).

174 See The Panopticon, UCL

BENTHAM PROJECT, https://www.ucl.ac.uk/Bentham-Project/

who/panopticon (last visited Feb. 19, 2016). George Orwell used the same concept in his

1984: “There was of course no way of knowing whether you were being watched at any

given moment. How often, or on what system, the Thought Police plugged in on any in-

dividual wire was guesswork. It was even conceivable that they watched everybody all the

time. But at any rate they could plug in your wire whenever they wanted to. You had to

live—did live, from habit that became instinct—in the assumption that every sound you

made was overheard, and, except in darkness, every movement scrutinized.” G

EORGE

ORWELL, 1984, at 4 (1949).

175 See Davis v. Sec’y of State for Home Dep’t, [2015] QBD 3665,

https://www.judiciary.gov.uk/wp-content/uploads/2015/07/davis_watson_order.pdf

(invalidating UK data retention law); Case C-293, Dig. Rights Ir. Ltd. v. Minister for

Commc’ns, 2014 E.C.R. 845, http://curia.europa.eu/juris/document/document.jsf?text

=&docid=150642&pageIndex=0&doclang=EN (invalidating the 2006 Data Retention Di-

rective).

176 See Henderson, Nothing New, supra note 162, at 555–59.

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 963

the arguments of William Stuntz

177

and the Supreme Court’s school

drug testing cases.

178

Christopher Slobogin has recently developed

the concept into a more rich theory of representative democracy—

relying upon the constitutional scholarship of John Hart Ely—that

would provide judicial review even where the government activity

does not constitute a Fourth Amendment “search” or “seizure.”

179

But again, whatever the benefits of even a well-functioning politi-

cal process, there are strong reasons to be cautious. As Justice Sandra

Day O’Connor argued in personally rejecting the Court’s permissive

regime of drug testing for student athletes, we have a strong tradition

against general warrants, and “[b]lanket searches, because they can

involve thousands or millions of searches, pose a greater threat to lib-

erty than do suspicion-based ones, which affect one person at a

time.”

180

Nonetheless, it would be just as wrong to ignore the fairness

benefit of broad applicability, as it would to think a “misery loves

company” conception would be ideal across the board (the latter of

which would adopt wholesale the hated general warrants of our

founding period).

181

It seems there might be limited, relatively narrow circumstances in

which we should embrace solely use restrictions, and I submit that

one of them might be for law enforcement body cameras. Of course,

perhaps this is an unfairly easy case, because in order for the camera

to capture anything, the law enforcement officer should already be

lawfully present, a criterion that brings its own sometimes-significant

front-end restrictions. But such recording nonetheless creates time

machines, and lots of them: there are almost a million law enforce-

ment officers in the United States.

182

With officers on duty at all

177 See William J. Stuntz, Local Policing After the Terror, 111 Yale L.J. 2137, 2166 (2002)

(“[S]preading the cost of policing through a larger slice of the population . . . reduces

the odds of voters demanding harsh and intrusive police tactics secure in the knowledge

that those tactics will be applied only to others.”).

178 See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 664 (1995) (“In many respects, we

think, testing based on ‘suspicion’ of drug use would not be better, but worse.”). In its

drug testing cases, the Court has also been swayed by use restrictions, holding searches

reasonable in part based upon the limited government use of positive testing. See Hen-

derson, Nothing New, supra note 162, at 560–61.

179 See Slobogin, supra note 172, at 1724, 1733–37.

180 Vernonia, 515 U.S. at 667 (internal quotation marks omitted).

181 See Delaware v. Prouse, 440 U.S. 648, 664 (1979) (Rehnquist, J., dissenting) (deriding a

“misery loves company” Fourth Amendment jurisprudence).

182 N

ATIONAL LAW ENFORCEMENT OFFICERS MEMORIAL FUND, LAW ENFORCEMENT FACTS: KEY

DATA ABOUT THE PROFESSION, http://www.nleomf.org/facts/enforcement/ (last visited

Mar. 3, 2016); see also By the Numbers: How Many Cops Are There In the USA?, T

HE SKEPTICAL

LIBRARIAN (Aug. 26, 2014), http://blog.skepticallibertarian.com/2014/08/26/by-the-

numbers-how-many-cops-are-there-in-the-usa/.

964 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

times, watching over mostly innocent behavior as well as some crimi-

nal, if every one records his or her entire shift, that is a staggering

amount of data.

Those recordings will psychologically affect the officers, and not

only in the sense of promoting good behavior. As discussed above,

nobody does well to be under constant surveillance (though, interest-

ingly, to many thousands of Americans working in retail and other

industries it is probably already their daily reality—albeit without ac-

companying audio—and these workers might have little to no prom-

ises regarding ex-post use and dissemination). Nor is it the case that

these recordings will merely duplicate what officers could themselves

personally explain. Instead, high quality cameras would record all

sorts of events and details never noticed by the officers, and potential-

ly permanently store them for later high-tech perusal (e.g., zoom in

and slow down).

183

Moreover, for things an officer does notice—

which will include highly traumatic events—the digital record will

remain forever pristine, whereas memories quickly degrade and even

fade entirely.

184

Such cameras would record not “only” events taking

place in public, but instead would record everywhere officers go, in-

cluding the interiors of our homes and therefore potentially under

every bed and into every drawer. So even if officer presence already

has an access (and thus acquisition) limitation, it would not necessari-

ly follow that nothing more should be required for the further intru-

sion of recording.

185

However, these panvasive qualities of officer recording also make

for some of its benefits. As long as there have been police, we have

had to rely not only upon their perceptions of what they observe, but

upon their memories of those perceptions. Both perception and

183 Of course, sometimes a camera’s preserving things unnoticed is precisely its utility. See

ARC JONATHAN BLITZ, POLICE BODY-WORN CAMERAS: EVIDENTIARY BENEFITS AND

PRIVACY THREATS 5–6 (2015).

184 On the benefits of human forgetting, see Henderson, supra note 11, at 708–09. As Bruce

Schneier has stated in the online context, “I used to say that Google knows more about

what I’m thinking of than my wife does. But that doesn’t go far enough. Google knows

more about what I’m thinking than I do, because Google remembers all of it perfectly

and forever.” S

CHNEIER, supra note 15, at 22. And it gets still more privacy invasive, be-

cause via data mining Google can learn correlations and patterns in your thinking of

which you have never been consciously aware.

185 At the very least such videos should not all become public records, as might be the de-

fault in some jurisdictions. See, e.g., Jessica Bruha, Local Law Enforcement Testing Body Cams,

ORMAN TRANSCRIPT (Sept. 21, 2014), http://www.normantranscript.com/news/local-

law-enforcement-testing-body-cams/article_c61e8ff4-4052-11e4-b4eb-eb2c7f02e600.html

(“[D]ue to a law going into effect . . . the video becomes public record and the depart-

ment is obligated to turn over a copy to any member of the public.”).

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 965

memory are fallible, and recollection thereof subject to falsification.

Of course, we have done what we can. Because memory dissipates

quickly, it is helpful when police contemporaneously record their

perceptions, and hence we value the ubiquitous police report (which

also “freezes” the account, making later fabrication more difficult).

With the advent of readily mobile photography, police could better

preserve those observations deemed sufficiently important, and pho-

tography of crime scenes thus became routine.

186

With the advent of

tape recording, certain police-citizen interactions were recorded.

187

And with the advent of videotaping, we became accustomed to its

benefits in certain contexts, such as video recordings of traffic stops

via cameras fixed in police vehicles. But when that videotaping made

it to the interior of the home, it caused concern, a concern that

reached the Supreme Court in 1999 in the case of Wilson v. Layne.

188

186 Yet that photography has sometimes proved controversial when used to fill “gang books”

of known and suspected gang members for use in future investigations, when part of a re-

staged arrest to permit the press a perp walk, or—in its most modern manifestation—

when an officer took his own selfie during a perp walk. See Lauro v. Charles, 219 F.3d

202, 213 (2d Cir. 2000) (holding unconstitutional a restaged perp walk because it had no

legitimate law enforcement purpose); Brown v. Pepe, 42 F. Supp. 3d 310, 316 n.10 (D.

Mass. 2014) (holding an officer’s “selfie” was at most a de minimis privacy intrusion);

Commonwealth v. Cao, 644 N.E.2d 1294, 1296–99 (Mass. 1995) (holding the procedure

used to obtain a photograph for a gang book did not constitute a seizure); People v. Ro-

driguez, 26 Cal. Rptr. 2d 660, 663–64 (Cal. Ct. App. 1993) (holding unconstitutional a

stop used to obtain a photograph for a gang book).

187 Tape recording likewise sometimes proved controversial, especially in the undercover

context. See, e.g., United States v. White, 401 U.S. 745, 753 (1971); Lopez v. United States,

373 U.S. 427, 439 (1963).

188 526 U.S. 603 (1999); see also Oziel v. Superior Court of L.A. Cnty., 223 Cal. App. 3d 1284,

1296, 1302 (Cal. Ct. App. 1990) (not deciding the constitutionality of police videotaping

the execution of a search warrant but refusing media access to that footage). Since Wil-

son, media presence has continued to cause potential Fourth Amendment violations. See,

e.g., United States v. Hendrixson, 234 F.3d 494, 496 (11th Cir. 2000) (holding that media

involvement at the execution of a search warrant in a home was a Fourth Amendment vi-

olation, but did not require exclusion of evidence); Smart v. City of Miami, 2015 WL

3409329, at *12–13 (S.D. Fla. May 27, 2015) (finding plaintiff’s § 1983 claim sufficient to

overcome summary judgment based on the theory that police inviting a crew from “First

48” to film plaintiff’s home was a violation of the Fourth Amendment); Carr v. Montgom-

ery Cnty., 59 F. Supp. 3d 787, 798 (S.D. Tex. 2014) (finding a plausible § 1983 claim for

bringing a third-party film crew into a home to videotape a warrantless search); Frederick

v. Biography Channel, 683 F. Supp. 2d 798, 799–802 (N.D. Ill. 2010) (finding a plausible

§ 1983 claim against a media company where plaintiffs were detained longer than police

needed for arrest, just so that a film crew could arrive to cover it); Conradt v. NBC Uni-

versal, Inc., 536 F. Supp. 2d 380, 383 (S.D.N.Y. 2008) (finding plausible § 1983 and inten-

tional-infliction-of-emotional-distress claims against media defendant for their show “To

Catch a Predator” having an unusually pervasive presence and influence throughout an

investigation that led the target to eventually commit suicide); Thompson v. State, 824

N.E.2d 1265, 1266, 1268–69, 1271 (Ind. Ct. App. 2005) (holding that a film crew’s pres-

966 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

As part of “Operation Gunsmoke,” United States Marshals were

working with local Maryland police to apprehend dangerous crimi-

nals, including one Dominic Wilson.

189

Unfortunately, the address in

police files was that of Wilson’s parents, so when police entered the

home to execute an arrest warrant—accompanied by invited repre-

sentatives of the media—what they found was Dominic’s father

roused from bed and dressed only in briefs and Dominic’s mother in

a nightgown.

190

Before police were made aware of, or at least were

convinced of, their mistake, they forcibly subdued the elder Mr. Wil-

son at gunpoint while a photographer from the Washington Post

took photographs.

191

The Court unanimously held that the officers

violated the Fourth Amendment by bringing representatives of the

media into a home entered pursuant to a warrant.

192

However, the

Court acknowledged government interests that could be furthered by

law enforcement’s own recording: accurately publicizing efforts to

combat crime (furthering education and deterrence), deterring and

detecting police abuse, protecting the safety of officers, and preserv-

ing evidence.

193

Thus, “it might be reasonable for police officers to

themselves videotape home entries.”

194

The benefits the Court proffered are real and can be significant.

As for evidence preservation, recording can preserve evidence with-

out requiring its physical removal;

195

preserve evidence that would

ence during a strip search in the defendant’s motel room violated the defendant’s Fourth

Amendment rights and warranted exclusion of the evidence gained during that search).

189 Wilson, 526 U.S. at 606.

190 Id. at 607.

191 Id.

192 Id. at 614. Eight Justices believed, however, that before this decision the law was not

clearly established, and therefore that the officers enjoyed qualified immunity. See id. at

615; id. at 618 (Stevens, J., dissenting in part). On the merits, the Court also distin-

guished circumstances in which a party is brought in the home to assist the police in their

task, as when a citizen is brought along to identify stolen property. See id. at 611–12.

193 See id. at 612–13.

194 Id. at 613.

195 This can serve First Amendment, privacy, law enforcement, and practical values. As for

the First Amendment, see, for example, City of Cincinnati v. Contemporary Arts Center, 566

N.E.2d 207, 213 (Ohio Mun. 1990) (approving of officers executing a search warrant by

videotaping an allegedly obscene art exhibit, which negates otherwise serious concerns of

pre-adjudication censorship). As for privacy, in some circumstances it might be difficult

for police to distinguish what is subject to seizure, and if probable cause justifies a greater

seizure, recording might provide a lesser invasion. For example, in Commonwealth v.

Balicki, 762 N.E.2d 290, 294–95 (Mass. 2002), defendants were believed to have purchased

household items with public funds. In such a case, there might be nothing about tainted

items that immediately commands attention, yet there might be probable cause (fair

probability) to seize a great portion of them. Similarly, federal agents involved in the

2005 search of Representative William Jefferson’s home opted to photograph documents

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 967

otherwise be destroyed by investigatory or non-investigatory govern-

ment actions, or simply by the passage of time;

196

and preserve evi-

dence in its most pristine form, allowing a judge or juror to view it

herself.

197

One could imagine recordings being used to routinely de-

cide such contested issues as whether a person consented to an entry

or search, and if so, the scope of that consent; whether a reasonable

officer would have believed a person to be in need of immediate as-

sistance; whether there was a fair probability that evidence would be

imminently destroyed; whether police exceeded the authorization of

a warrant; or whether an officer reasonably believed deadly force was

justified.

198

To be sure, no single video is “perfect,” as the camera

for which they alleged probable cause, and thus for which they could have executed a

“plain view” warrantless seizure, because the documents were not directly responsive to

the warrant’s list of seizable items. United States v. Jefferson, 571 F. Supp. 2d 696, 700

(E.D. Va. 2008). As for practicality, there will of course be instances in which physical sei-

zure is impractical or even impossible. See, e.g., People v. Bambino, N.Y. L.J. 25 (Aug. 4,

1992) (Nassau Cnty. Justice Ct. 1992) (photography/videography where defendants were

believed to have an apartment in their basement in violation of applicable zoning law);

State v. Dickerson, 313 N.W.2d 526, 530 (Iowa 1981) (photography of tire tracks). And as

for law enforcement interests, it might be necessary to preserve evidence without tipping

off a suspect. See, e.g., United States v. Villegas, 899 F.2d 1324, 1330 (2d Cir. 1990) (au-

thorizing a “sneak and peak” or “covert entry” warrant to search a property for evidence

of cocaine manufacturing that would be photographed but not physically seized).

196 This interest arises whenever police entry is predicated upon emergency aid, during

which their protective actions will sometimes destroy unseen or in-the-moment unappre-

ciated evidence (or during which a malicious officer could destroy “undesirable” evi-

dence). It also arises when victims’ bodies are to be moved. See, e.g., Forbes v. State, 1995

WL 241722, *5–6 (Tex. App. 1995) (permitting photography and videotaping prior to

medical examiner and photography by medical examiner); State v. Wright, 558 A.2d 946,

950–51 (R.I. 1989), abrogated on other ground recognized by State v. Brennan, 627 A.2d 842,

848 (R.I. 1993) (same); State v. Anderson, 599 P.2d 1225, 1230 (Or. App. 1979) (permit-

ting videotaping prior to removal of victim’s body); Patrick v. State, 227 A.2d 486, 488–90

(Del. 1967) (permitting photography prior to removal of victim’s body). Or when there

is a fire. See, e.g., Michigan v. Clifford, 464 U.S. 287, 289 (1984) (reaffirming and applying

these principles); Michigan v. Tyler, 436 U.S. 499, 510–12 (1978) (establishing three

tiered structure for searches of fire scenes); Schultz v. State, 593 P.2d 640, 643 (Alaska

1979) (permitting photography during emergency fire search); Dubbs v. State, 157

S.W.2d 643, 645 (Tex. Crim. App. 1942). And sometimes evidence is naturally evanes-

cent, such as a pool of blood not yet dried into a carpet, which might indicate something

about the time of an attack or other relevant event. See, e.g., Ortega v. State, 669 P.2d 935,

942 (Wyo. 1983) (permitting photography to preserve evanescent evidence, though in an

opinion fraught with scientific error and weak legal reasoning), overruled in part on other

grounds, Jones v. State, 902 P.2d 686, 692 (Wyo. 1995).

197 See, e.g., Scott v. Harris, 550 U.S. 372 (2007) (relying upon dash camera video to hold of-

ficers acted reasonably in using deadly force). The Supreme Court has noted this eviden-

tiary advantage in the context of undercover recordings. See United States v. White, 401

U.S. 745, 753 (1971); Lopez v. United States, 373 U.S. 427, 439 (1963).

198 See, e.g., Ohio v. Robinette, 519 U.S. 33, 35 (1996) (noting dash camera video that was

presumably used in determining consent to search); United States v. Bah, 794 F.3d 617,

622 n.1 (6th Cir. 2015) (noting use of dash camera video to determine reasonable suspi-

968 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

perspective can itself suggest a cognitive frame and thereby affect

these myriad determinations.

199

But it is far better than without. In

the straightforward words of the Alaska Supreme Court in the context

of recording custodial interrogations, “a recording will help trial and

appellate courts to ascertain the truth.”

200

Thus, preservation has secondary benefits, including in deterring

and detecting police abuse. There are ample recorded examples,

from detectives playing Wii Bowling during a home search,

201

to acci-

dent investigators “do[ing] a little Walt Disney to protect [a] cop”

who rear-ended another vehicle.

202

The most prominent recent ex-

cion); Rudlaff v. Gillispie, 791 F.3d 638, 639 (6th Cir. 2015) (using dash camera to de-

termine excessive force); Green v. Throckmorton, 681 F.3d 853, 862 (6th Cir. 2012) (us-

ing dash camera to determine whether reasonable suspicion was materially disputed);

Lee v. Anderson, 616 F.3d 803, 812 (8th Cir. 2010) (noting jury’s use of video in deter-

mining whether deadly force was reasonable and relying upon video in denying claim of

insufficient evidence); United States v. Nicholson, 17 F.3d 1294, 1296 (10th Cir. 1994)

(noting magistrate’s use of dash camera video in determining consent); United States v.

Abarza, No. 1:14–cr–179–MC, 2015 WL 69556684, at *1–3 (D. Or. Nov. 6, 2015) (noting

the usefulness of dash camera footage and using it to negate allegations like “high-crime

area” and nervousness); Burnett v. Unified Gov. of Athens-Clarke Cnty., No. 3:08-CV-04

(CDL), 2009 WL 5175296, at *6 (M.D. Ga. Dec. 22, 2009) (noting defendant’s refusal to

consent in dash camera video); Commonwealth v. Griffin, 116 A.3d 1139, 1143–44 (Pa.

Super. Ct. 2015) (using dash camera footage to determine the extent of physical manipu-

lation during a Terry stop); Lampkin v. State, 470 S.W.3d 876, 888–89 (Tex. Ct. App.

2015) (using dash camera footage used to determine whether defendant was intoxicat-

ed); Scott v. State, 559 So. 2d 269, 272 (Fla. Dist. Ct. App. 1990) (noting that video of

search warrant execution did not conflict with trial court’s findings regarding knock and

announce); Kimberly Kindy & Julie Tate, Police Withhold Videos Despite Vows of Transparency,

ASH. POST (Oct. 8, 2015), http://www.washingtonpost.com/sf/national/2015/10/08/

police-withhold-videos-despite-vows-of-transparency/ (discussing utility of police body

cameras in fatal shootings); Richard Perez-Pena, Officer Indicted in Shooting Death of Un-

armed Man, N.Y.

TIMES, July 29, 2015, at A1 (describing use of officer body camera in

murder indictment). This is of course a benefit in the videotaping of interrogation. See,

e.g., State v. Hajtic, 724 N.W.2d 449, 454–56 (Iowa 2006) (relying upon and encouraging

such recording).

199 See generally Kwangbai Park & Jimin Pyo, An Explanation for Camera Perspective Bias in Volun-

tariness Judgment for Video-Recorded Confession: Suggestion of Cognitive Frame, 36 L

AW & HUM.

BEHAV. 184–85 (2012).

200 Stephan v. State, 711 P.2d 1156, 1161 (Alaska 1985).

201 See Steve Andrews, Polk Sheriff Disciplines Wii-Playing Deputies, T

AMPA TRIB., Nov. 11, 2009,

at 4; Steve Andrews, A Wii Bit Distracted, T

AMPA TRIB., Sept. 22, 2009, at 1.

202 See Tonya Alanez, Ex-Hollywood Officers Accused of Falsifying Crash Report Now Face Federal

Lawsuit, S

UN SENTINEL (June 4, 2010), http://articles.sun-sentinel.com/2010-06-

04/news/fl-hollywood-cops-federal-lawsuit-20100604_1_andrea-tomassi-officer-dewey-

pressley-officer-joel-francisco; Tonya Alanez, DUI Charge Dropped After Cops Accused of Crash

Cover-Up, S

UN SENTINEL (July 30, 2009), http://articles.orlandosentinel.com/2009-07-

30/news/hollywood_1_dui-charge-finkelstein-broward-state-attorney; see also Jim Dwyer,

Videos Challenge Accounts of Convention Unrest, N.Y.

TIMES, April 12, 2005, at A1, B4 (report-

ing on videotape contradicting police reports concerning arrests at the 2004 Republican

National Convention); Jim Dwyer, A Switch Is Flipped, and Justice Listens In, N.Y.

TIMES

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 969

amples might be the shootings of Walter Scott and Samuel Dubose,

each of which resulted in murder charges against the police officer.

203

It seems self-evident that video would deter (and where that fails, de-

tect) abuse, an inference supported by police recording in Rialto,

California. In the first year of body camera recording, complaints

against officers fell by 88% and use of force by officers fell by almost

60%.

204

Thus, in Judge Shira A. Scheindlin’s 2013 order holding un-

constitutional the New York Police Department’s stop and frisk tac-

tics, she required a trial program of officer body cameras.

205

To be

most effective, that video must record all police-citizen interaction—

lest officers only turn it on when it serves their purposes

206

—and be

(Dec. 8, 2007), http://www.nytimes.com/2007/12/08/nyregion/08about.html?

pagewanted=print&_r=0 (reporting on an officer falsely claiming a recorded interroga-

tion had never taken place); John Eligon, No Jail for Ex-Officer Over Toppled Bicyclist, N.Y.

TIMES, July 15, 2010, at A26 (reporting on an incident in which a New York City officer

body slammed a bicyclist and then, adding insult to injury, charged him with attempted

assault and disorderly conduct); Sasha Goldstein, Police Dash Cam Video Exonerates New Jer-

sey Man, Leads to Indictment of Cops, N.Y.

DAILY NEWS (Feb. 25, 2014),

http://www.nydailynews.com/news/crime/police-dash-cam-video-exonerates-nj-man-

implicates-cops-article-1.1701763 (reporting on dash camera footage that exonerated a

man from evading arrest and proved police had falsified records); David A. Graham, The

Death of Jeremy Mardis and the Honesty of the Police, A

TLANTIC (Nov. 12, 2015),

http://www.theatlantic.com/national/archive/2015/11/the-death-of-jeremy-mardis-and-

trustworthy-police/415437/ (reporting police lying about an incident that left a 6-year-

old boy dead and the body camera footage that proved it); Kim Minugh, Faked Reports Put

Cop in Jail, S

ACRAMENTO BEE (Apr. 20, 2013), http://www.sacbee.com/mobile/bees-

best/article2577255.html (reporting on an officer who provided false information in a

number of police reports); Joe Sharkey, A Constitutional Case in a Box of Cash, N.Y.

TIMES,

Nov. 17, 2009, at B5 (reporting on an illegitimate and abusive detention of an airplane

passenger for carrying a significant amount of cash).

203 See Alan Blinder & Timothy Williams, Ex-South Carolina Officer Is Indicted in Shooting Death

of Black Man, N.Y.

TIMES, June 9, 2015, at A12; see also Perez-Pena, supra note 198; Damien

Cave & Rochelle Oliver, The Videos That Are Putting Race and Policing into Sharp Relief, N.Y.

TIMES (updated Oct. 27, 2015), www.nytimes.com/interactive/2015/07/30/us/police-

videos-race.html (gathering videos depicting numerous instances of alleged excessive use

of force by the police).

204 See Ian Lovett, In California, a Champion for Police Cameras, N.Y.

TIMES (Aug. 21, 2013),

http://www.nytimes.com/2013/08/22/us/in-california-a-champion-for-police-

cameras.html; see generally M

ICHAEL D. WHITE, POLICE OFFICER BODY-WORN CAMERAS:

ASSESSING THE EVIDENCE (2014), https://www.ojpdiagnosticcenter.org/sites/default/

files/spotlight/download/Police%20Officer%20Body-Worn%20Cameras.pdf (articulat-

ing the strengths and weaknesses of available empirical evidence).

205 Floyd v. City of New York, 959 F. Supp. 2d 540, 563 (S.D.N.Y. 2013).

206 See LINDSAY MILLER & JESSICA TOLIVER, POLICE EXECUTIVE RESEARCH FORUM,

MPLEMENTING A BODY-WORN CAMERA PROGRAM: RECOMMENDATIONS AND LESSONS

LEARNED 12–14 (2014), http://www.justice.gov/ iso/ opa/ resources/ 47201491213471524

6869.pdf (describing ACLU position that would require recording all police-citizen inter-

action, but also describing counter arguments); see id. at 40–42 (making particular rec-

ommendations); Ill. S.B. 1304 § 10-20(a)(3) (requiring, with articulated exceptions, that

“[c]ameras must be turned on at all times when the officer is in uniform and is re-

970 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

tamper-resistant.

207

And when it comes to deterring and detecting

abuse, turnabout is fair play. Recording can shield police against

false allegations of abuse as well as deter or at least detect poor citizen

decisions, perhaps including some that caused those previously unre-

corded use of force incidents.

So, given the myriad benefits of tamper-resistant, always-on officer

recording—where “always on” includes cameras with a significant,

typically-overwritten buffer meant to become permanent when trig-

gered by an officer-citizen interaction—it seems such recording is

worth the privacy cost. But this merely means police should record.

It remains to be determined—or should remain to be determined—

what can be done with those recordings, which of course preserve

immense amounts of otherwise ephemeral irrelevant information like

the takedown of an innocent man in his bedclothes in Wilson v.

Layne. The mere preservation of that information is a meaningful

harm, if nothing else because the relevant parties know there is al-

ways a risk of its further consumption and dissemination.

208

And thus

recording can also harm law enforcement interests if it deters citizen

cooperation and assistance where persons fear criminal reprisal.

Thus, as an administrative matter in police department guidelines, as

a legislative matter, and—I would argue—as a matter of Fourth

Amendment (and state constitutional analog) reasonableness, there

should be use and disclosure limitations on that data. These would

include security from unauthorized access, need-to-know limitations,

audit logs, and destruction schedules.

209

For example, viewing the footage of a home search should at least

sometimes itself constitute a Fourth Amendment search, just like pe-

rusing a seized computer. Reentering the home after completion of

the search would of course require a new warrant,

210

and just as a

sponding to calls for service or engaged in any law enforcement-related encounter

or activity”).

207 See, e.g., Dwyer, supra note 202 (describing prosecution use of a misleadingly edited police

video; the prosecution was dropped when defense attorneys obtained the unedited ver-

sion); Allesandra Ram, Sandra Bland’s Arrest Footage Shows How Fallible Video Can Be, W

IRED

(July 22, 2015, 6:32 PM), http://www.wired.com/2015/07/sandra-blands-arrest-footage-

shows-fallible-video-can/ (describing recent instance in which odd edits to a controversial

police video seem to be only technical glitches).

208 For a telling example, see Commonwealth v. Balicki, 762 N.E.2d 290, 295–96 (Mass. 2002),

in which the court describes in detail the many innocent details preserved by the record-

ing of a home search. In today’s “reality television” pseudo-celebrity obsessed culture,

many might be most interested in the criminally irrelevant portions of a search.

209 See, e.g., S

TANDARDS FOR CRIMINAL JUSTICE: LAW ENFORCEMENT ACCESS TO THIRD PARTY

RECORDS §§ 25-6.1, 25-6.2 (3d ed. 2013); see also Ill. S.B. 1304 § 10-20(a)(7).

210 W

AYNE R. LAFAVE ET AL., 2 CRIM. PROC. § 3.4(j).

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 971

search of a seized hard drive yields previously unknown information,

viewing of video will yield information not noticed by officers, and—

given video enhancement capabilities—information not previously

noticeable. Moreover, the resource and legal restraints are far differ-

ent when any number of officers can view video in their offices than

when those officers are on the scene executing a search warrant gov-

erned by the constraints of the Fourth Amendment, potentially in-

cluding a judicial warrant. Thus, just as courts have begun to recog-

nize that “digital is different” in other contexts, courts should here

recognize a meaningful difference in kind despite law enforcement

officers traditionally being permitted to re-examine physical items in

their possession. The over-seizure inherent in the recording merits a

different result.

So understood, in the limited context of police body cameras, the

benefits of complete recording seem to outweigh the costs, and

therefore this is a government time machine that I would permit sub-

ject only to meaningful access, use, and dissemination controls. This

of course leaves for future work the development of a taxonomy as to

when acquisition restrictions are more or less important, and what

should be the constitutional and statutory rules and administrative

best practices. But it provides a critical perspective as we approach

these decisions, seeing them for what they are: Fourth Amendment

time machines.

ONCLUSION

We are in the midst of dramatic techno-social change. In the

words of Christena Nippert-Eng:

It’s as if a distinct cultural climate change is underway. The ocean has

risen, shrinking our islands of privacy and even submerging many of

them altogether. Like Atlantis, perhaps, some private spaces and times

and matters are fading into the realm of folklore—even legend—their

very existence destined to rest one day on the unsubstantiated claims of

prior generations.

211

The ability of technology for the first time to feasibly record and store

most all behavior—both online and off—is certainly a tectonic shift.

It seriously threatens privacy, and thus all of privacy’s myriad individ-

ual and societal benefits.

Of course, any such shift can be exaggerated, and in some sense

little is ever new. In 1890, with the advent of the portable camera, a

newspaper bemoaned that, “This season there is something at the

211 NIPPERT-ENG, supra note 160, at 3–4.

972 JOURNAL OF CONSTITUTIONAL LAW [Vol. 18:3

seaside worse than sharks. It is the amateur photographer.”

212

Yet we

somehow made it through, sufficient privacy intact. Laws have long

required that certain records be retained, and businesses have long

retained far more than what the laws require.

Nonetheless, differences in scope at some point become differ-

ences in kind, and I believe there is utility in recognizing today’s digi-

tal records for what they are—investigative time machines—and

openly confronting whether their benefits justify their costs. Where

they do, we should utilize access, use, and dissemination restrictions

for our privacy. And in those instances in which only a panvasive

time machine will do, and in which its benefits still outweigh its costs,

we can rely solely upon those ex post restrictions.

213

But these time

machines are fraught with great danger to our humanity and to our

democracy, and thus should be approached with a healthy, if not vig-

orous distrust. Thus, in this Article I have taken only a baby step,

recommending a use restriction regime for police officer body cam-

eras, recognizing that officer presence builds in acquisition restraints.

Legislatures should provide frameworks for these recordings, requir-

ing reasonable guarantees of secure storage and appropriately re-

stricting and disciplining errant access, use, and dissemination.

214

those restrictions ultimately prove unworkable or insufficient in this

212 Every Step You Take, E

CONOMIST (Nov. 16, 2013), http://www.economist.com/news/

leaders/21589862-cameras-become-ubiquitous-and-able-identify-people-more-safeguards-

privacy-will-be.

213 In the context of the NSA bulk telephony metadata surveillance, the Privacy and Civil

Liberties Oversight Board recognized that to justify a program solely restricted by use re-

strictions should require “a strong showing of efficacy.” PCLOB

REPORT, supra note 42, at

13.

214 A growing chorus of voices recognizes the role a legislature should play, and in the rele-

vance of that role to constitutionality. See, e.g., ACLU v. Clapper, 785 F.3d 787, 824–25

(2d Cir. 2015) (“We note first that whether Congress has considered and authorized a

program such as this one is not irrelevant to its constitutionality. The endorsement of the

Legislative Branch of government provides some degree of comfort in the face of con-

cerns about the reasonableness of the government’s assertions of the necessity of the data

collection . . . . [T]he legislative process has considerable advantages . . . . A congressional

judgment as to what is ‘reasonable’ under current circumstances would carry weight—at

least with us, and, we assume, with the Supreme Court as well—in assessing whether the

availability of information to telephone companies, banks, internet service providers, and

the like, and the ability of the government to collect and process volumes of such data

that would previously have overwhelmed its capacity to make use of the information, ren-

der obsolete the third-party records doctrine or, conversely, reduce our expectations of

privacy and make more intrusive techniques both expected and necessary to deal with

new kinds of threats . . . . Ideally, such issues should be resolved by courts only after [ex-

ecutive and legislative] debate, with due respect for any conclusions reached by the coor-

dinate branches of government.”).

Feb. 2016] FOURTH AMENDMENT TIME MACHINES 973

limited context, then we will have learned that they certainly cannot

alone be trusted in other spheres.