ITS GO VERNMENT SURVEILLANCE IS DIRECT ACTION BY THE STATE
Government surveillance involves direct government action
Richards 8 Neil M. Richards, Professor of Law, Washington University in St. Louis.
December, 2008 Texas Law Review 87 Tex. L. Rev. 387 Article: Intellectual Privacy lexis
What, then, should the solution to this problem be? The theory of intellectual privacy I have articulated here suggests that the interest in confidential communications also needs to be considered, and that this interest is a First Amendment one. Government surveillance - even the mere possibility of interested watching by the state - chills and warps the exercise of this interest. This effect was understood by the drafters of the Fourth Amendment, who grasped the relationship between preventing government searches of papers and protecting religious and political dissent. n271 Because government surveillance involves direct state action, it is also a rare case where constitutional doctrine could do useful work on its own. Because we are some distance removed from the freedom of thought, the confidentiality of communications need not be protected absolutely, particularly given the legitimate government interest in the prevention of international terrorism. But by the same token, this interest is not always sufficient to override the First Amendment interests in intellectual privacy. Constitutional doctrine - either First Amendment law or Fourth Amendment law taking expressive interests into account - could therefore mandate warrants for all surveillance of intellectual activity. This standard should at least be the level of the current Fourth Amendment warrant requirement, and could possibly be higher, given the particular expressive interests that could elevate scrutiny of intellectual activity beyond a search for contraband or other kinds of incriminating evidence.
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