The Fourth Amendment protects the people from “unreasonable search and seizures” by the state. However, this does not mean that each and every search or seizure by the state is unreasonable. To be sure, while the Supreme Court has said that the standard of a reasonable search or seizure is one that is initiated with probable cause of criminal activity backed by a warrant issued by a neutral judge; it has also held that there are a number of circumstance were a governments responsibility to keep the community safe and secure rise to the level in which is can temporarily surpass a person’s right to privacy. This is especially true of electronic surveillance because “throughout the twentieth century, technology has provided that government significantly greater ability to probe into the private lives of individuals” (Solove et al., 2006). Accordingly, the government has developed guidelines for the understanding in what situations the “warrant and probable cause” standard must be followed and under what circumstances will it have more flexibility to act. The guidelines consist of three tiers (Samaha, 2011). The first tier describes the circumstances were the people right to privacy is strongest and therefore the state has less room to operate outside of having probable cause and a warrant. These circumstances include general “real time” electronic surveillance of people. To be sure, unless the alleged criminal act is a felony or terrorism, state electronic surveillance needs probable cause and a warrant in order to be implemented. The second tier provides more deference to state actions if the target of the search or seizure is stored electronic communications (SEC). SEC refers to e-mails and voicemails that may be stored in a database, computer or a voicemail recorder. If the information has been stored more than six months, than the state has the right to access it, regardless of the seriousness of the alleged criminal act, with probable cause and a warrant, however they do not have to tell the target of the surveillance hat the are under surveillance if doing so would end with “adverse results”. Lastly, Tier 3 gives the state the most flexibility in implementing a search. Under Tier 3, the state is allowed to learn numbers dialed from a phone (pen register) or numbers received by a phone (trap and trace) with nothing more than a supervisor’s agreement. Moreover, they do not need to inform the target that they are under surveillance.
References
Samaha, Joel. (2011). Criminal Procedure, 8th ed. New York, NY: Wadsworth Publishing.
Solove, Daniel J., Marc Rotenberg, and Paul M. Schwartz. (2006). Information Privacy Law, 2nd ed. New York, NY: Aspen Publishers.
