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Panvasive Surveillance, Political Process Theory, and the Nondelegation Doctrine

Slobogin, Christopher, Panvasive Surveillance, Political Process Theory and the Nondelegation Doctrine (April 23, 2014). Georgetown Law Journal, Vol. 102, 2014; Vanderbilt Public Law Research Paper No. 14-13. Available at SSRN: http://ssrn.com/abstract=2428391

p.2: Using the rise of the surveillance state as its springboard, this Article makes a new case for the application of administrative law principles to law enforcement. It goes beyond asserting, as scholars of the 1970s did, that law enforcement should be bound by the types of rules that govern other executive agencies, by showing how the imperative of administrative regulation flows from a version of John Hart Ely’s political process theory and principles derived from the closely associated nondelegation doctrine. Part I introduces the notion of panvasive law enforcement—large-scale police actions that are not based on individualized suspicion—and exposes the incoherence of the Supreme Court’s “special needs” treatment of panvasive investigative techniques under the Fourth Amendment. It then contrasts the Court’s jurisprudence, and the variations of it proposed by scholars, to the representation- reinforcing alternative suggested by Ely’s work, which would require that panvasive searches and seizures be approved by a body that is representative of the affected group and be applied evenly. Part II explores the impact of political process theory on panvasive surveillance that is not currently considered a search or seizure under the Fourth Amendment, using fusion centers, camera surveillance, drone flights and the NSA’s metadata program as examples. Part III mines administrative law principles to show how the rationale underlying the nondelegation doctrine—if not the (supposedly moribund) doctrine itself—can help ensure that the values of representative democracy and transparency are maintained even once control over panvasive surveillance is largely ceded to the Executive Branch. -- Highlighted apr 30, 2014

p.4: The historical records firmly show that the Framers were particularly incensed at the British Parliament’s legalization of “writs of assistance,” warrants that authorized the random and undifferentiated ransacking of homes for “uncustomed” goods. James Otis, for instance, called the writ “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book[, because it placed] the liberty of every man in the hands of every petty officer.” -- Highlighted apr 30, 2014

p.4: So what does the Fourth Amendment have to say about the National Security Agency’s bulk collection and analysis of millions of phone records—the “metadata” program recently highlighted by Edward Snowden’s revelations? Or the activities of the seventy-plus fusion centers set up around the country that suck up gigabytes of information about our transactions? Or the video recordings obtained through the hundreds of thousands of cameras set up in our urban areas, or via the tens of thousands of drones that will soon be flying over the country? -- Highlighted apr 30, 2014

p.5: In addition to being pervasive and invasive, these technologically aided mass surveillance techniques are inherently “panvasive,” a term I recently coined 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. -- Highlighted apr 30, 2014

p.5: Under the Court’s jurisprudence, tracking of our public movements with technology like cameras and drones is not, in the absence of a trespass, a “search” as that word is used in the Fourth Amendment; nor, under the Court’s “third party doctrine,” does a search occur when government agencies like the NSA or fusion centers obtain information stored in phone company, Internet service provider, and bank computers. As a result, not only does the Fourth Amendment not require a particularized warrant before a person is subject to such surveillance, it has nothing to say about the surveillance even when it takes place in the absence of any suspicion about the people targeted. -- Highlighted apr 30, 2014

p.5: Under political process theory as it is developed in this Article, executive actions infringe the Constitution’s imperative of representative democracy when they are not authorized by legislation, are authorized by a legislative entity that does not represent the affected group, or are not adequately limited by the legislative or executive branches. This Article argues that each of the panvasive surveillance techniques described above violates one or more of these precepts. -- Highlighted apr 30, 2014

p.6: But Ely’s principal insight, this Article argues, is that courts have a crucial role to play in ensuring that legislatures are at least marginally accountable to the populations they govern, and that agencies do not legislate or discriminate without constraint. This version of political process theory can be parlayed into a relatively robust vehicle for judicially monitoring government actions even in settings that, at best, impinge on the penumbra of specific constitutional guarantees. -- Highlighted apr 30, 2014

p.6: Put another way, the implication of this version of political process theory is that if the democratic process has seriously malfunctioned, courts should have the authority to evaluate the resulting legislative or regulatory action even when a “fundamental right” is not implicated. In the context at issue here, this maxim means that even if a particular type of panvasive surveillance is definitively determined to fall outside the ambit of the Fourth Amendment, courts should still be able to look at its democratic provenance. -- Highlighted apr 30, 2014

p.7: In other words, administrative law principles, including central features of the Administrative Procedure Act, should apply to law enforcement departments, which are, after all, administrative agencies. In this respect, this Article attempts to rejuvenate and provide a stronger theoretical basis for the insights of scholars like Kenneth Culp Davis, Anthony Amsterdam, and Carl McGowan who, writing four decades ago, argued that law enforcement agencies should be subject to rule-making requirements. -- Highlighted apr 30, 2014

p.7: In sum, this Article uses the rise of the surveillance state as a springboard for making the case for judicial application of process theory and nondelegation principles to the police. -- Highlighted apr 30, 2014

p.8: The paradigmatic Fourth Amendment search or seizure occurs after the police have targeted a particular individual and then, based on some modicum of suspicion (sometimes memorialized in a warrant, sometimes not), arrest the suspect or search her house, car or person. Panvasive searches and seizures, in contrast, are not aimed at specific individuals, but rather involve government invasion of the privacy or autonomy of a number of people, despite foreknowledge that most if not all of them are innocent of any wrongdoing. Even if the government is certain that one or more guilty people will be found in the group, the action is panvasive if the government does not have a clue as to who they are at the time the group search and seizure takes place. -- Highlighted apr 30, 2014

p.12: Not only is the distinction between “ordinary crime control” and “special needs” situations hard to sustain, the Court has never made clear why the distinction matters. -- Highlighted apr 30, 2014

p.12: A related explanation for the ordinary crime control threshold is that if, as suggested above, situations that do not fit into this category can be characterized as more facilitative or protective than adversarial in nature, they could be said to be less intrusive or oppressive, and thus, less in need of regulation. -- Highlighted apr 30, 2014

p.13: In other work, I have identified an array of factors that the Court considers in carrying out this balancing analysis: (1) the seriousness of the wrongdoing sought to be detected or deterred (for example, terrorism versus minor illegality); (2) the pervasiveness of the wrongdoing (for example, smuggling drugs across the border versus drug use by politicians); (3) the extent to which an individualized-suspicion requirement would prevent the government from achieving its goal; (4) the intrusiveness of the search or seizure; (5) the degree of notice to or consent by the targets; (6) the nature of ex ante review of the program, if any; and (7) the existence of a neutral plan that diminishes discretion of the officers who execute the search or seizure.5 -- Highlighted apr 30, 2014

p.16: The political process theory of constitutional interpretation arose out of these very concerns—a worry about arbitrary judicial intermeddling with the democratic process and the conviction that courts are institutionally ill-suited to carry out essentially legislative and administrative tasks. As laid out by John Hart Ely in Democracy and Distrust, political process theory dictates a narrow vision of judicial review when courts are interpreting vague provisions like the Equal Protection and Due Process Clauses. According to Ely, whether courts rely on natural law, “neutral principles,” “reason,” tradition, judicial determination of current or future consensus, or their judges’ own values in determining when an interest is “fundamental,” the results are indeterminate, contradictory, and deeply undemocratic. To the extent this determination requires resort to facts, he added, courts are no better, and probably worse, than legislatures at acquiring and making use of the necessary information, especially in those inevitable and numerous situations where “the facts are inherently intractable, not susceptible to resolution in any way that would satisfy all observers.” -- Highlighted apr 30, 2014

p.17: Ely stated that any legislative or executive action that either undermines interests “essential to political participation” or evidences “prejudice against discrete and insular minorities” should be declared unconstitutional by the courts. Furthermore, in a passage that is particularly relevant to the criminal justice context, Ely expressed concern that laws passed by majorities be evenly applied by the Executive Branch “to reduce the likelihood that a different set of rules is effectively being applied to the comparatively powerless.” -- Highlighted apr 30, 2014

p.18: Importantly, for Ely courts have a role in ensuring the Constitution fulfills its democracy-enhancing role even when specific constitutional provisions are not at stake. As Ely pointed out, a logical corollary of the representation-reinforcing view is that when the political branches are not functioning properly, even laws that deal with benefits that are “constitutionally gratuitous”—Ely’s way of describing interests that are not “explicitly granted in the Constitution”—are vulnerable to judicial review. -- Highlighted apr 30, 2014

p.31: In United States v. Jones, some members of the Court seemed willing to declare that significant aggregation of information about public activities or data handed over to third parties can at some point become a search, but only Justice Sotomayor was willing to say so explicitly, and even she was somewhat tentative about the idea. A second way of defining the search threshold, which also surfaced in Jones, associates searches with property interests and physical intrusiveness. But that tack is also unavailing to those who seek constitutional regulation of panvasive surveillance, which is almost always carried out from a distance and never intrudes physically into a house, person, paper, or effect. Thus, under current Fourth Amendment jurisprudence, these types of programs are immune from constitutional review. -- Highlighted apr 30, 2014

p.32: It is not a far step from this reasoning to the conclusion that fusion centers, camera systems, drones, and metadata collection are special needs situations; certainly, as will become clear below, the intelligence-gathering aspects of these programs could be characterized as either antiterrorism efforts or mechanisms aimed at something other than determining whether a specific individual engaged in specific wrongdoing (or both). If so, the government interest in crime prevention and detection using these programs is likely to outweigh the individual interest in maintaining privacy in public or in protecting information surrendered to third parties. -- Highlighted apr 30, 2014

p.33: In this Article, I am assuming the Fourth Amendment does not apply to panvasive surveillance. The key assertion here is that, even in the face of this assumption, political process theory should trigger judicial analysis of the legislation and representation criteria at the programmatic level and of the executive-constraint criterion at the targeting stage. Recall Ely’s words: “The Constitution ... structur[es] decision processes at all levels to try to ensure, first that everyone’s interests will be actually or virtually represented (usually both) at the point of substantive decision, and second, that the processes of individual application will not be manipulated so as to reintroduce in practice the sort of discrimination that is impermissible in theory.” -- Highlighted apr 30, 2014

p.34: The focus of fusion centers is quite broad. As one fusion center trainer put it, “If people knew what we were looking at, they’d throw a fit.” Fusion centers have collected information about Muslim lobbying groups, supporters of new political parties, and historically black colleges.155 Under a new initiative from the Department of Homeland Security—or rather, a new version of an old initiative called TIPs—fusion centers are also involved in collating suspicious activity reports (SARs) of potential terrorist activity submitted by both police and ordinary citizens. -- Highlighted apr 30, 2014

p.35: From a political process perspective, a key concern about fusion centers involves the legislation criterion. In most states, fusion centers are not explicitly authorized by statute. Rather they “derive their authority from general statutes creating state police agencies or memoranda of understanding among partner agencies.” Thus, in these states legislative regulation of their activities is either nonexistent or comes solely from the federal government through the aforementioned policies governing fusion centers that receive federal money. In these states, no local legislative body has debated the purpose or scope of fusion center operation. Even at the federal level, the most pertinent legislation merely provides for the establishment of “partnerships with State, local, and regional fusion centers,” not their creation. -- Highlighted apr 30, 2014

p.49: These legitimate concerns about giving terrorists and the criminal element information that can help them “circumvent the law” might call for adjustments to the notice-and-comment process and other typical administrative law protocols, some of which are noted below. But rules about where cameras can be placed, how drones will be used, or the types of data fusion centers will collect will normally not reveal this type of information and in fact might be helpful from a deterrence perspective. Indeed, a good argument can be made that publicly announced rules should be the norm even for the NSA; in any event, post-Snowden, many of the NSA’s investigative techniques are now public knowledge. -- Highlighted apr 30, 2014

p.55: The original PATRIOT Act was virtually silent about monitoring the NSA’s metadata surveillance. But the 2006 amendments contained two provisions that create a legislative oversight mechanism. Section 106A of the amended Act requires the FISC to provide various congressional committees with the rules and procedures it develops to decide how section 215 orders are issued and to submit annual audits on their implementation. Furthermore, section 126 requires that the Attorney General submit a report containing “a thorough description” of the data mining technology intelligence agencies use, the likely efficacy of the technology, “an assessment of the likely impact of the implementation of the pattern-based data-mining technology on privacy and civil liberties,” and various other matters.

Thus, the oversight structure for the NSA metadata program is in place, and again is in stark contrast to the nonexistent, legislatively created oversight mechanisms for fusion centers. -- Highlighted apr 30, 2014

p.56: The audit of NSA operations provided by Snowden documented 2776 incidents of rules violations—many of them “inadvertent” but nonetheless still amounting to statutory or constitutional violations—between April 2011 and March 2012, a rate of roughly eight violations per day. -- Highlighted apr 30, 2014

p.57: In sum, executive agencies should not be able to wield the substantial power that surveillance technology brings without concrete direction and oversight from the legislature. Even if the courts do not have authority under the Fourth Amendment to regulate such practices themselves, administrative law principles consistent with the nondelegation doctrine give them authority to ensure the legislature takes steps to do so. -- Highlighted apr 30, 2014

p.58-59: As Professor Dalal has documented in his account of government surveillance from the Hoover years to the present, intra-agency, interagency, and congressional oversight can easily be co-opted by the perceived exigencies of crime fighting and detecting threats. For the same reasons, mission creep is an endemic problem in law enforcement, in particular with respect to panvasive surveillance, where programs designed initially to ferret out terrorists devolve into an effort to catch sex offenders and illegal immigrants. -- Highlighted apr 30, 2014

p.63: Each of the panvasive surveillance programs discussed in this Article might be challengeable on political process theory grounds. Fusion centers are often not legislatively authorized at all. Camera and drone surveillance may be aimed at areas not represented in the legislative body. And all three of these programs, as well as the NSA’s metadata surveillance practices, may run afoul of the executive-constraint criterion if the legislation fails on intelligible principle or oversight grounds or the implementing regulations fail to meet administrative law’s reason-giving, reasonableness, or promulgation-procedure principles. -- Highlighted apr 30, 2014