Imperfect Protection Against Perfect Enforcement: When Procedure Is Not Enough

Government technology that exclusively detects illegal conduct is per se constitutional. Today, the Fourth Amendment provides no protection—zero—against government technology that identifies illegality without also revealing private, innocent behavior. Meanwhile, alarmingly, government is rapidly developing—and deploying— technology that bypasses the need to examine private, innocent behavior in its detection of wrongdoing. Government can know there is contraband in your bedroom drawer without the need to rummage through that drawer, your home, or any of your private information and possessions. Government can know there is illegal content on your phone without the need to search through that phone or any of your private accounts and data. If enforcement technologies continue to develop apace, under existing law, government will be able to detect—and punish—every instance of illegal behavior, every time, without violating the Fourth Amendment. This imminent, staggering government power is called “perfect enforcement of law.” The Fourth Amendment should stand against this dystopian power. The Fourth Amendment does not exist, I contend, merely to protect the innocent from government’s prying eyes and heavy hands. The Fourth Amendment should also provide space for some amount of lawbreaking—because some degree of lawbreaking is prosocial. A marginal amount of illegality is required to facilitate moral, political, and legal evolution. This Note illustrates how the law crucially evolves in response to lawbreaking, outlines how current Fourth Amendment doctrine will deny this crucial feature of social and legal refinement in an age of perfect enforcement, and explores potential doctrinal reforms. Ultimately, this Note concludes that only substantive protections of illegality—not merely procedural protections—can perfectly protect against perfect enforcement. I term this novel framework “substantive criminal procedure.”