Edited by Federico Fabbrini and Vicki C. Jackson
Chapter 6: Translating rights across centuries: U.S. constitutional protection against unreasonable searches and seizures in a transnational era
Courts and lawyers in many constitutional democracies struggle with the challenges of maintaining appropriate levels of surveillance and information gathering while also protecting privacy and other rights. As we examine these struggles, three themes emerge. First, one sees the importance of multiple voices (internal as well as external) in developing constitutional norms; internal dissent can be significant in defining the parameters of the possible within particular national communities. Second, as developments in many jurisdictions show, there are substantial possibilities for evolution of written rights over time, in light of changing technologies and settings. Finally, interpretation of fundamental law can benefit by considering transnational settings and sources of law. After identifying some current controversies, this chapter explores these themes in light of U.S. Fourth Amendment law and its potential application to government metadata/surveillance programs. Two major programs have recently come to light and generated controversy. The first program is directed to the collection of data generated by electronic communications in the United States: the telephonic metadata program authorized under Section 215 of the USA PATRIOT Act, and the subject of a January 2014 report by the President's Privacy and Civil Liberties Oversight Board (PCLOB). The program involves collection of data from telecommunications providers about communications – such as the time, number called, and length of call – but not the substance of the communication.
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