As courts and legislatures increasingly recognize that “digital is different” and attempt to limit government surveillance of private data, one group is conspicuously excluded from this new privacy-protective discourse: the five million people in the United States on probation, parole, or other forms of community supervision. This Article is the first to explore how warrantless electronic surveillance is dramatically transforming community supervision and, as a result, amplifying a growing privacy-protection disparity: those in the criminal legal system are increasingly losing privacy protections even while those not in the system are increasingly gaining privacy protections. The quickly expanding use of GPS-equipped ankle monitors, as well as other forms of electronic searches, reflects unprecedented government surveillance that has yet to be regulated, scrutinized, or limited in any meaningful way. This Article explores this phenomenon in its own right but also contends that the expanding disparity in privacy protections is explained by two underappreciated but significant shifts in Fourth Amendment jurisprudence. First, on the theory that defendants “choose” surveillance in exchange for avoiding incarceration, courts increasingly invoke consent to justify otherwise unconstitutional surveillance of people on community supervision. While the debate over criminal justice bargaining is not new, the expanded reliance on consent in this context reveals blind spots in the existing debate. Second, courts also increasingly accept government arguments in favor of otherwise unconstitutional electronic monitoring under a general “reasonableness” standard, as opposed to the traditional “special needs” doctrine. This insidious shift toward “reasonableness” threatens to jeopardize the precise interests the Fourth Amendment was designed to protect. But even under a reasonableness standard, electronic surveillance of people on community supervision should be more circumscribed. Ultimately, this Article reveals how the significance of these two shifts extends beyond electronic
surveillance and represents a new frontier of sanctioning warrantless searches without any level of suspicion or exception to the warrant requirement.
GW Paper Series
98 N.C.L. Rev. 717 (2020)