A Day Without the Fourth Amendment
Accompany our hero on his journey through a fictional world without the Fourth Amendment.
Brad Rayburn wakes up at 6:45 a.m. The government knows he woke up because he told his home assistant to turn off his alarm and start playing the news, and a few minutes later asked it about the day’s weather. His government-managed surveillance log notes that Brad has woken up at this time for the last four straight days. The most recent break from this behavior was last Saturday morning, when Brad woke up at home of Elisa Peters, whom he met at a bar the prior evening, after a one-night stand. The surveillance log knows they met at the bar because they had no history of contact by phone, text, or on dating apps, and because the location history for their phones shows they were never at the same place at the same time, other than at Madison Square Garden during a basketball game two years ago. The log knows it was a one-night stand because according to data scraped from their phones, neither entered the other’s contact information into their address books.
At 7:14, Brad Rayburn feeds his cat after taking a shower. The government knows this because the microphones on his phone, computer, and home assistant record the noises of a shower from 7:03 to 7:19, and then the cat meowing for several minutes until 7:15. Brad then exercises for approximately 30 minutes, which the log determines based on accelerated heart rate recorded by the fitness bracelet he wears. The government cannot confirm what his exercise routine is this morning because his laptop is facing the window, but based on past times its video camera has recorded him he likely did three sets of pushups, followed by three sets of sit-ups, followed by squats, and then jumping jacks. Brad also does yoga, but only on Sundays, following instructions from a YouTube playlist.
Brad leaves his apartment building at 8:15. This is recorded in his surveillance log based on the GPS and cell site data from his phone, which is used to track his movements. Most mornings, he either walks straight to work or stops in a coffee shop four blocks north of his apartment. Today, Brad does stop in the coffee shop, and according to the store purchase log, buys a vanilla latte with skim milk. His purchase history shows this is by far his most frequent morning drink. He occasionally buys a cold brew instead; the only pattern for this appears to be a minor correlation with lower levels of sleep. Brad also sometimes orders an extra-large iced black tea, but his surveillance log shows he only does this after spending at least two hours at a bar the previous evening.
The coffee shop is the focus of real-time, human-overseen surveillance, rather than the continuous automated log that is underway for Brad and most other Americans. This has nothing to do with Brad, but rather Portia Laurens, a reporter investigating corruption in the district attorney’s office. Portia is not carrying a phone or any Internet-connected electronics that could be used to track her movement, but facial recognition on a video feed from a red-light camera identifies her as she enters the coffee shop. Any official from the district attorney’s office who enters the coffee shop while Portia is there will immediately become a suspect in an ongoing investigation to find who is leaking information to Laurens and several other reporters.
Brad leaves the coffee shop at 8:27 and walks for 28 minutes to work. While he is walking he texts his older brother Dennis, who lives in Kansas City. Their surveillance logs record the text of this conversation, which is about last night’s basketball game between the Celtics and the Lakers. Both watched the game the prior night—logs record that Dennis watched on cable while Brad streamed the game on his laptop using their parents’ cable account. The automated scan of one of Brad’s texts set off an alert for immediate human review because it contained a reference to a bomb and Madison Square Garden, but an analyst quickly concluded his statement that “Rondo sucks hes gonna bomb at MSG next week” was not a security threat.
Brad arrives at his office at 8:55, and conducts research at his cubicle throughout the morning, except when he walks to the office kitchen at 10:25 and when he goes to the bathroom at 11:13. On both occasions his phone was in his pocket, which kept a log of his movements. Brad leaves the office and walks two blocks east to buy lunch at a food truck—where he is the fifty-seventh customer of the day—at 12:30. While Brad is getting lunch, his colleague Ben Jeremy passes by his office computer and looks directly at the screen for 20 seconds. This is logged by a facial-recognition scan of the camera above the monitor, and based on computer analysis of his eye movements, the surveillance log estimates with a high degree of confidence that Ben was reading a draft email Brad was in the middle of writing. According to Ben’s log, he has likely or definitely snooped on seven work colleagues’ computers, and usually does so at least once a week.
For the rest of the afternoon Brad continues research work. The only website he visits that isn’t related to work is to check the hour-by-hour weather forecast for the remainder of the day. It is logged along with all his personal and work web-browsing activities. At 3:50, there is a period of inactivity on his work computer, during which the log of his phone indicates he played Clash of Clans for 25 minutes, followed by seven minutes on Tinder, although he does not communicate with anyone. He browses sports blogs on his phone for the next eight minutes, then activity on his work computer resumes.
Brad leaves the office at 6:25 and walks home, jaywalking on two occasions. He purchases a six-pack of beer at a liquor store three blocks from his apartment. After he arrives at home at 7:13, his log indicates based on meowing recorded on the microphone of his phone that he immediately feeds his cat. For the next 40 minutes, Brad browses sports threads on Reddit. Brad puts on The Godfather, which he has saved on an external hard drive attached to his Xbox. He downloaded it and a dozen other movies from a torrent two years ago, which the government has logged but will not threaten to prosecute him for unless he becomes a significant social agitator or his cooperation is needed for a separate investigation. Brad orders a chicken parm sandwich from a nearby Italian restaurant through a delivery app, which arrives at 8:20. He has ordered dinner from this restaurant 67 times this year, making it the second-most-frequent place Brad gets delivery from.
Brad tells his home assistant to play a playlist he has labeled “Sleepy Time Music” at 11:30. Logs indicate Brad almost always listens to pop and hip hop, but his Sleepy Time Music playlist is smooth jazz. He usually listens to this playlist or an extended “Rainforest Sleep Track” when he falls to sleep, but his log indicates there is no pattern. He sets a sleep timer for 45 minutes, but data from his fitness bracelet notes that he fell asleep within 10 minutes. His surveillance log records from his microphone indicate that he woke up and went to the bathroom at 2:14 a.m., but Brad will not even remember doing this when his alarm wakes him up at 6:45 once again.
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The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.