Gray Speaks on Pervasive Surveillance, 4th Amendment
David C. Gray, JD, PhD, MA, says we are living in an age of surveillance, and if you don鈥檛 believe him, just look around.
鈥淓verywhere you go, there is a surveillance camera,鈥� Gray, the Jacob A. France Professor of Law at the , said during his 2019 (UMB) Researcher of the Year Presentation on Oct. 22 in the school鈥檚 Moot Courtroom. 鈥淭here are two cameras in this room, and if you step outside, there are three in the atrium.
UMB Researcher of the Year David C. Gray delivers his presentation, 鈥淭he Fourth Amendment in an Age of Surveillance.鈥�
鈥淎ll around Baltimore, there are surveillance cameras watching what you鈥檙e doing. And there鈥檚 this little Cessna airplane that flies above us all the time with 100-megapixel cameras that are able to surveil a 30-square-mile area.鈥�
Gray also pointed to emerging technologies that give law enforcement agencies more tools to monitor citizens, such as GPS tracking on cellphones and fitness devices, radio-frequency identification tags on clothing, and facial recognition programs. And, he added, if you think the Fourth Amendment of the Constitution is about your right to privacy, think again. 鈥淚t鈥檚 all about government power,鈥� he said.
The interplay among surveillance, privacy, and government power was paramount during Gray鈥檚 presentation, as he took the audience of 100-plus on an intriguing and informative ride through the history of the Fourth Amendment, past and recent court cases, and how it鈥檚 all intertwined in an era when tracking and surveillance devices are, as he noted, omnipresent.
Gray鈥檚 lecture was titled 鈥淭he Fourth Amendment in an Age of Surveillance,鈥� which also is the title of his 2017 book that explored the law that guards against unreasonable searches and seizures by the government. He was introduced first by UMB President Jay A. Perman, MD, and then Carey School of Law Dean Donald B. Tobin, JD.
Perman noted that UMB鈥檚 Researcher of the Year honor typically has gone to faculty members from the University鈥檚 health professional schools but that it was past time to recognize legal scholarship.
鈥淚 often talk about our faculty creating the knowledge that saves us and sustains our health,鈥� Perman said. 鈥淏ut it鈥檚 clear that Dr. Gray and his colleagues at the Carey School of Law create the knowledge that protects us, that safeguards our rights, that holds those in power to account, that defends our democracy and preserves our rule of law.鈥�
Said Tobin: 鈥淒r. Gray鈥檚 multidisciplinary expertise and methods allow him to advance an understanding of both theoretical and practical concepts. His work on the Fourth Amendment and surveillance bridges philosophical principles like freedom, liberty, autonomy, and governmental power. We also recognize Dr. Gray as not just a fantastic scholar, but also a fantastic teacher.鈥�
20th-Century Doctrines
Gray鈥檚 teaching skills were much in evidence during the talk, as he used PowerPoint slides, keen insight, and his trademark wit to enthrall the crowd. He detailed several 20th-century doctrines that emerged from court decisions and seemed to put certain surveillance technologies beyond the reach of Fourth Amendment regulation.
The Third Party Doctrine held that anytime you shared information with a third party, the Fourth Amendment did not protect you against that information being shared with the government. With the Public Observation Doctrine, individuals did not have a reasonable expectation of privacy in anything exposed to public view, even if it involved, as it did in one court case, the use of a helicopter to look through a house鈥檚 skylights. And the Standing Doctrine involved plaintiffs needing to prove that they had suffered a personal deprivation of their individual expectations of privacy in order to press a Fourth Amendment claim.
The latter doctrine came into play in 2013, when the Supreme Court dismissed Amnesty International鈥檚 lawsuit against James Clapper, the former U.S. director of national intelligence, and the federal government over the Section 702 surveillance program, which aimed to collect foreign intelligence from non-Americans located outside the United States.
鈥淭he ACLU and a number of human rights groups said, 鈥楾his is going to violate our Fourth Amendment rights,鈥欌�� Gray said. 鈥淎nd the court said, 鈥楬ow do you know? Has your reasonable expectation of privacy been violated?鈥� And those people said, 鈥榃e don鈥檛 know because it鈥檚 a secret surveillance program.鈥� And the court said, 鈥業t鈥檚 not our problem. Until you know that your reasonable expectation of privacy has been violated, you have no standing.鈥欌��
However, Gray noted that two other Supreme Court decisions this decade have illustrated a shift in the court鈥檚 thinking on the Fourth Amendment and new surveillance technologies 鈥� Jones v. United States, and Carpenter v. United States. In the Jones case, the court found that law enforcement鈥檚 installation of a GPS tracking device on a suspect鈥檚 vehicle was a physical intrusion, and therefore an illegal search based on the Fourth Amendment.
鈥淚n her concurring opinion, Justice Sonia Sotomayor noted that it may be time to rethink the Third Party Doctrine,鈥� Gray said of the 2012 decision. 鈥淎nd, by implication, maybe it鈥檚 time to rethink that Public Observation Doctrine. And maybe it鈥檚 time to rethink the Standing Doctrine. Maybe it鈥檚 time we rethink the Fourth Amendment in the 21st century. We don鈥檛 know where it鈥檚 going, but let鈥檚 think about it.鈥�
Taking on 鈥楶anvasive鈥� Surveillance
So Gray and several law school colleagues wrote a series of articles and essays promoting what they described as a technology-centered approach to the Fourth Amendment.
鈥淚n our view, the Fourth Amendment should limit government access to means and methods that are capable of facilitating programs of broad and indiscriminate surveillance, the kinds of technologies that would allow for so-called 鈥榩anvasive鈥� surveillance,鈥� said Gray, whose work during this time period led to his 2017 book.
Using a theory of interpretation called 鈥減ublic meaning originalism鈥� that was championed by the late Justice Antonin Scalia, Gray delved into the text of the Fourth Amendment and what it meant in historical context when the language was drafted and adopted. He concluded that the amendment was about government power, not privacy; that the rights were collective, not individual; and that those rights were to be protected by instituting remedies that constrain governmental behavior.
Then came the Carpenter case, where Gray, Carey Law colleagues, and professors from other law schools submitted an amicus brief to the Supreme Court arguing that if law enforcement agencies seek cellphone site location information (CSLI), that act should be considered a search governed by the Fourth Amendment. And the court agreed.
鈥淲hat is the nature of the right that鈥檚 being protected?鈥� Gray said. 鈥淲ell, it鈥檚 guaranteeing a collective security against unreasonable searches and seizures, in particular the means and methods that would be capable of facilitating programs of broad, pervasive, and indiscriminate surveillance. And guess what? Cellphone site location information is one of those. And what does this all mean? If you want someone鈥檚 CSLI, then go and get a warrant.
鈥淭his is what we do at the Carey School of Law. As law professors, we see something in the world that doesn鈥檛 seem quite right or we see an injustice, and we go down into the stacks, we go deep into the law books, and we come back with solutions. We come back with new ideas, new concepts, new ways of looking at things, and new and concrete suggestions.鈥�
Read more about Gray and the other Founders Week award winners.
