Week 10: Fourth Amendment: “Special Needs” – Anti-Terrorism Efforts & Border Searches

In a post-9/11 world, the Government has a heightened interest in surveillance for national security purposes. How should traditional Fourth Amendment search and seizure doctrines be applied to new technologies like deep-packet inspection? What is the optimal balance? Is transparency important? Or would that undermine the very purpose of government spying? Similarly, the Government has always asserted a heightened law enforcement interest, as well as lower individual expectations of privacy, at border checkpoints. How much leeway should this “special need” give customs and immigration agents? Should the Government be able to confiscate and search your laptop or iPod at the border when you return from vacation? More broadly, where is the appropriate balance to be struck between national security and law enforcement interests, on the one hand, and autonomy and privacy interests, on the other? How are we to draw this line?


Required readings:

Border Searches:

• United States v. Montoya de Hernandez, 473 U.S. 531 (1985). Majority opinion (Rehnquist) and Justice Brennan’s dissent. (If you’re pressed for time, just read the Syllabus and skim the majority opinion, but please give Brennan’s dissent the attention it deserves).
• Jaikumar Vijayan, Privacy Office Approves Laptop Searches Without Suspicion, CSO Online (Aug. 31, 2009).
• United States v. Arnold, 533 F. 3d 1003 (9th Cir. 2008).
• ACLU Blog of Rights, Body Scanner = Naked Movie Star Pictures; That Didn't Take Long.
• ABC News, The Facts on Airport Body Scans.

National Security and Anti-Terrorism Efforts:

• Solove & Schwartz, Privacy, Information, and Technology, pp. 192-197, 200-210, 237-240 (read notes 7-9), 519-523.
• Mark Mazzetti & Eric Lipton, Spy Agencies Failed to Collate Clues on Terror, N.Y. Times (Dec. 30, 2009). Skim.
• MSNBC, NSA Outed by Mark Klein.
• Leslie Cauley, NSA has massive database of Americans’ phone calls, USA Today, May 11, 2006. Skim.
• Jack M. Balkin, The Constitution in the National Surveillance State, 93 Minn. L. Rev. 1 (2008).
• Orin S. Kerr, The National Surveillance State: A Response to Balkin, 93 Minn. L. Rev. 2179 (2009).