This Review discusses two timely and insightful books examining the changing relationship between privacy and the Fourth Amendment in the digital era. Part I discusses the tensions between the need to protect privacy rights and the slowly evolving legal landscape during a time of rapidly changing technology, to introduce David Gray’s The Fourth Amendment in an Age of Surveillance. His book explains how the Fourth Amendment, though embattled, can have a prominent role in twenty-first century discussions of privacy, technology, and surveillance. Gray’s analysis is engaged to broaden the conversation about Stingray technology. This section analyzes a sampling of the litigation over Stingrays and highlights the divergent, sometimes vibrant, opinions held by courts about the viability of Katz v. United States in current Fourth Amendment jurisprudence.
Part II analyzes two important Stingray surveillance cases, State v. Andrews and United States v. Patrick, speculating further about a future Supreme Court case where a majority looks disfavorably upon law enforcement’s use of Stingray surveillance technology. Part III shifts to discuss Barry Friedman’s book, Unwarranted: Policing Without Permission, to explore why better police accountability is needed in a modern world. Citizens want both safe neighborhoods and less police misconduct at a time when the police are conducting searches with neither warrants nor probable cause. Unwarranted is a critical dissection of the debates about policing, and a clarion call to take responsibility. At the core, Friedman argues that limitations must be placed on the unfettered discretion afforded to the police when they conduct traffic stops and stop and frisks as well as when they use surveillance technology.
Part IV builds upon the background established by the Age of Surveillance and Unwarranted to present an argument that curbing police authority to arbitrarily stop individuals is now more difficult in light of Utah v. Strieff, a wrongly decided decision dealing a serious blow to the exclusionary rule.
Part V discusses the unfettered discretion exercised by the Metropolitan Police Department of the District of Columbia (“MPD”) when embarking on indiscriminate searches using Veritrax GPS records to look for potential suspects who may be on supervised probation. This issue has received scant attention because the increase in the number of people on community supervision, or “mass supervision,” through probation and parole is largely an afterthought.