How Pinpoint Searches Widen the Net

For a long time, we’ve counted on the 4th Amendment to shield us from too-zealous enforcement of bad laws. But as Julian Sanchez reports in a recent Reason article, new technology could allow the authorities to do an end-run around the 4th Amendment:

In a nation whose reams of regulations make almost everyone guilty of some violation at some point, Americans have grown accustomed to getting away with minor transgressions: the occasional joint or downloaded movie or high-speed dash to the airport. For at least some crimes, though, the expectation that our peccadilloes will slip through the cracks may soon be outdated. The new style of noninvasive but deeply revealing detection—call them “pinpoint searches”—will require rapid adjustments in both legal rules and social mores.

Jeff Goldstein is unconcerned, because he agrees with David Brin that the possibility for micro-enforcement will create a groundswell of support for changing the laws in question:

Brin believes a world of more perfect enforcement will create democratic pressure to either eliminate or drastically reduce penalties for “victimless” offenses. What matters, Brin avers, is not what the government knows about you but what it can do to you. To those who fear a world in which, for instance, routine speeding infractions are invariably met with stiff fines, Brin ripostes: “Can’t you trust your fellow citizens to not want that either?”

This strikes me as hopelessly optimistic because it ignores the way state authorities actually work. Perhaps in the case of speeding, which virtually everyone does from time to time, the uproar might be sufficient to force a change in the law if the law is enforced uniformly (say, by automatic traffic cameras). But for most of the laws we’re talking about, there is ample reason to think the laws will be enforced selectively on targeted individuals and groups. In addition, the authorities use minor infractions like drug possession as leverage to justify arrests that could not otherwise be justified, to motivate testimony from unwilling witnesses, to extract plea bargains from suspects they cannot convict of worse offenses, and so forth. And everyone knows this. It’s standard operating procedure.

The proliferation of laws and regulations that make virtually everyone guilty of something gives state authorities the discretion to punish whomever they want, whenever they want. This is a problem already, and technology that eases the detection of every little infraction will only exacerbate it.