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December 31, 2012

"Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment"

I usually do not post "front-end" criminal procedure articles, but I am especially to eager to promote this new article on SSRN authored by my Ohis State colleague Ric Simmons because it highlights how new technologies can help engender more productive debates over old criminal justice questions.  And this seems like an especially timely topic as we prepare to ring out an old year and ring in a new one. Here is the abstract:

Every criminal procedure student learns on the first day of class that Fourth Amendment policy represents a zero-sum game: a constant struggle between the individual privacy of citizens and the needs of law enforcement.  In reality, however, the “competition” between law enforcement and criminals does not have to be zero-sum.  In order to see why, we need to see the criminal justice system not as a competition, but instead as an industry.  This article applies economic principles to try to find ways to increase the efficiency of the criminal justice system — that is, to maximize output while minimizing costs. The costs to the system are both the intangible loss of privacy that is associated with surveillance, as well as the tangible, actual monetary cost incurred by law enforcement organizations to undertake the surveillance.  The output that we are seeking is crime control, or more specifically in the Fourth Amendment context, the identification of those who are guilty of a crime and collection of evidence which can be used to demonstrate their guilt.  Roughly speaking, the more money we spend, and/or the more willing we are to infringe on our own freedoms, the more output we receive in terms of identifying the guilty and recovering incriminating evidence.

However, there are two ways that this industry could in fact be a positive-sum game. First, advances in technologies can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens — that is, it is possible to increase the output without increasing the cost.  And second, changing norms and attitudes may decrease the value of certain kinds of privacy to individuals, causing the cost of certain types of surveillance to decrease.  This can work in the other direction as well: when criminals, rather than police, take advantage of technological advances, the output of the system will decrease even if costs are held constant.  Likewise, societal norms could change to make certain types of privacy more valuable, thus increasing the cost to the system.  In these situations, the criminal justice system becomes a negative sum game.  Once we have identified the productivity of different forms of surveillance, we can take steps to encourage more productive types of surveillance and discourage the less productive ones.

The Article first sketches out a basic formula for analyzing the productivity of different surveillance methods by measuring the cost of the inputs and the benefits of the outputs. It then applies this formula to different methods of surveillance to see how certain methods of surveillance are more productive than others, searches for ways to increase the productivity of surveillance generally.  Finally, the Article offers some suggestions for changing the way we regulate surveillance techniques in order to maximize the efficiency of the process.

December 31, 2012 at 11:44 AM | Permalink


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What a joke. The game is over. The fourth is pretty much DEAD with all the exceptions. If it was really decided to actualy enforce that Constutional Requirement one thing and one thing only has to be done!

Pass a new amendment that strips the court of the abilty to recogizne all those exceptions. Take the fourth back to basics. There are not only no exceptions to it. But violation of it renders anything and everything gone. No enevitable discovery Nothing!

Plus require crimnal charges against anyone shown to have violated it.

Then Enforce That!

Posted by: rodsmith | Jan 1, 2013 2:37:48 AM

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