Is Technology Outstripping the Ability of Law to Protect Us?

In many important respects, the answer to this question is yes. Take public surveillance cameras, for example. After the bombing attack in Boston, it was through the use of public surveillance cameras that authorities were able to identify the "persons of interest" that we eventually learned were the Tsarnaev brothers. In that particular case, the cameras in question were nearly all under the control of private companies using them for building security rather than surveillance, and in that situation the Fourth Amendment doesn't apply at all. Even in the case of wide nets of government-run surveillance cameras, the law places virtually no limit on what authorities can do with them.

Courts said long ago that there is no reasonable expectation of privacy in public, meaning that police can follow someone around or monitor their movements to and from a private location with virtually no limitation on their activity. Courts will only step in if the conduct becomes harassing. With cameras, though, authorities don't even need to expend the resources of sending officers out on surveillance; they can do it all from the comfort of an office, and there's nothing the law can or will do to stop them. Similarly, the revelations that have come out over the past week about the National Security Agency cover activities that, while rightfully raising concerns about privacy and government overreach, are largely entirely legal under both the Fourth Amendment and under the Patriot Act.

As I noted above, much of the problem we face today is that the law that we have to deal with issues about what the government can and cannot do was developed in the twentieth century when the technology available to the state was far more limited than it is today. Applying legal precedent written to deal with a completely different era to technology that is far more advanced is not an easy task at all, and it's something that courts will continue to struggle with. As long as that's the case, it's going to be next to impossible to place reasonable limits on what the state can do. More importantly, it will become even more difficult as technology becomes more advanced. It's time for the law to catch up with technology, and that's going to require the American people to become a lot more concerned about these issues than they have been in the past.