Monday, December 30, 2019

University of Florida Levin College of Law 


The Specter of Warrantless Governmental Intrusion Is a Phantom that Has Achieved Greater Life in the Ether of Internet Communications 

Featured Article 
Vania Mia Chaker*

* A.B., Stanford University; M.B.A., Columbia Business School; M.B.A., University of California, Berkeley Haas School of Business; J.D., University of California, Berkeley School of Law.


The privacy rights[2] of American citizens have been eroding with metronomic regularity given the sharp rise in the government’s reliance on surreptitious electronic surveillance, warrantless digital searches, and deliberately engineered cybersecurity vulnerabilities,[3] all of which have occurred with the sort of ubiquity that few could ever have previously imagined. The dangers of unfettered government searches and seizures are pervasive and grave. A world without a strong footing in the democratic principles and ideals of the Enlightenment upon which our country was founded would be a dark world indeed. 

This Article analyzes the constitutionality of the United States government’s use of emerging technology to conduct warrantless searches of private citizens and companies, including their digital transmissions and stored electronic data. The analysis begins with an examination of the legal background of the Fourth Amendment, focusing on Katz v. United States[4] and its progeny, including a review of the most recent U.S. Supreme Court cases in the area of privacy and the Fourth Amendment: Carpenter v. United States,[5] Riley v. California,[6] and United States v. Jones.[7] While evaluating the government’s actions with respect to warrantless searches and surveillance in the post-Katz era, this Article turns to specific examples of surreptitious governmental monitoring programs that likely run awry of the rule of law and the United States Constitution.

This Article then considers the greater normative and policy implications of the government’s arguably extralegal conduct, including the potential for the derision of democratic values and ideals that may, in turn, result in the weakening of our country’s political framework and cybersecurity infrastructure. Sacrificing the ideals of our democracy in order to ostensibly protect it may instead serve to lead us down a road of dangerous folly. Such constitutional erosion could steer the United States toward a dangerously precipitous decline. For the greater good, it may be wise if the government were to carefully heed the maxims “respice finem” and “obsta principiis[8] before it strays from its fundamental democratic mandates.


I am deeply grateful to all of the gracious and esteemed individuals who have assisted me with this project, but especially long-time mentors, Dean Emeritus Jesse Choper, the Honorable Tom Campbell, and the Honorable Christopher Cox. Without their invaluable assistance and interest in my work, this Article would never have reached fruition.

I owe a profound debt of gratitude to all of my beloved mentors, my esteemed advisors in academia and law, and my inspiring Stanford professors, including the Honorable Edwin Meese III, the Honorable Christopher Cox, the Honorable Tom Campbell, the Honorable Lane Evans, the Honorable Rudi M. Brewster, the Honorable Mitchel R. Goldberg, the Honorable Dick Thornburgh, the Honorable Robert W. Naylor, Professor Lawrence M. Friedman, all of the distinguished Senior Fellows at the Hoover Institution who I was extremely privileged to have worked with and known, and my esteemed preparatory school advisor, Ralph N. Schmidt.

A special, heartfelt thank you goes to Jonathan A. Sebastiani, Donald L. Lucas, Sr., and Kimberly R. Hauser.

I also thank Ryan G. Baker, Matthew M. Mahoney, Phil Burkhardt, Jaime Marquart, Charles L. Deem, and William V. Whelan, all exceptionally-talented and stellar attorneys, for their steadfast and loyal support, as well as Rebekah M. Allison, Editor in Chief, for her wonderful and tireless assistance on this project.

I am extremely fortunate and grateful to have had the encouragement and support of all of these fine individuals, as well as others, during my career.