Saturday, December 24, 2005

Fourth Amendment

I'm not a Fourth Amendment expert by any means, nor does it even hold that much interest for me. The modern caselaw involves too much hair-splitting for my tastes. Anyway, one of the lines of doctrine that I had the unfortunate necessity to learn while clerking was the Colonnade-Biswell doctrine. In Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970) and United States v. Biswell, 406 U.S. 311 (1972), the Supreme Court held that people who engage in "closely regulated industries" don't have much expectation of privacy for Fourth Amendment purposes. Thus, people who sold liquor or firearms (respectively) could be subject to inspections and seizures without a warrant. In a subsequent case -- New York v. Burger -- the Supreme Court applied this doctrine so that state inspectors could search junkyards for stolen auto parts, again without a warrant.

Anyway, now that so many people are complaining about the NSA's scrutiny of overseas phone calls related to terrorist groups, it would be interesting if they could do one of two things: 1) Demonstrate their logical consistency by arguing that all agencies of the federal government -- not just the NSA -- should have to get a warrant and prove probable cause before performing inspections; or 2) Explain why the inspection of liquor stores or junkyards is so much more important than catching al Qaeda. Otherwise, the criticism of the NSA appears to be nothing more than partisan opportunism.

And on a different note, ever since coming across this line of doctrine, I've always wondered what would stop the police or a state legislature from just announcing that the drug trade was a "closely regulated industry," and hence that any drug user or seller would be subject to search at any time without a warrant. Or perhaps the NSA could do the same here: Terrorism is a "closely regulated industry" -- regulated to the point of prohibition -- and so forth.


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