Résumé
Policymakers – state and federal, legislative and judicial – have expressed their interest in updating the laws regarding electronic surveillance. This interest is motivated by several recent trends. First, law enforcement surveillance has traditionally been limited as much by practical considerations, including the costs and technical difficulty of obtaining evidence, as legal ones. However, technological innovations have undermined these traditional practical protections, raising questions about the adequacy of the legal protections that remain. Second, law enforcement agencies are no longer the only entities collecting information about individuals. A wide variety of commercial entities now collect information about their customers, which law enforcement can access with only minimal legal protections. However, attempts to update electronic surveillance laws are made more difficult by the fact that very little is currently known about how law enforcement officers use electronic surveillance and commercial information requests. In my dissertation, I present the results of three studies that investigate how law enforcement uses electronic surveillance. First, I quantitatively analyzed how restricting law enforcement access to particular types of third party information may change law enforcement use of one particular type of law enforcement surveillance – wiretaps. I find that state laws increasing protections for phone records decreased the duration of wiretap use, although it did not decrease the number of initial intercept requests. I theorize that increasing the legal protections for third party information may cause law enforcement officers to delay their use of wiretaps during investigations, as they need to gather more information before obtaining permission to use third party information. Second, I qualitatively studied how law enforcement decides to use electronic surveillance and commercial information requests, identifying the factors law enforcement officers consider before deciding to use each technique. I find that there are significant practical barriers to using both electronic surveillance and third party information requests, although these barriers may be different. Third, I analyze variation in local law enforcement agencies in the United States, and discuss how this variation may complicate attempts to address changes in practical protections against law enforcement surveillance. I conclude that there are several factors that may make it easier for law enforcement agencies that serve large communities to use electronic surveillance, when compared with law enforcement agencies that serve small communities. I then argue that failing to consider this variation when interpreting the Fourth Amendment in light of technological changes may create additional difficulties for smaller law enforcement agencies.