Abstract
This Note analyzes the flaws of a government-created "super statute. "In an unprecedented form of statutory interpretation—known as the hybrid theory—the federal government combines the authority of two portions of the Electronic Communications Privacy Act to assert authority that does not exist under either portion alone. The government has repeatedly relied on this artificial authority to obtain court orders approving the use of wireless telephones as tracking devices, thus sidestepping the probable cause standard traditionally required for such an intrusive form of surveillance. When this surveillance identifies individuals inside their homes, Fourth Amendment concerns are implicated. Because the court orders routinely remain sealed even after surveillance is terminated, however, individuals are precluded from appealing the orders and remedying the potential constitutional violations. Moreover, even if individuals learn of the surveillance and bring claims against the government, those claims are likely to be dismissed on procedural grounds. The lack of opportunity for appellate courts to reach the issue means the government is essentially controlling the development of the law. This Note recognizes the need for legislative or, in the interim, judicial action to rectify that problem.
How to Cite
53 Ariz. L. Rev. 663 (2011)
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