Proposed 28th Amendment

Why We Need a Constitutional Right to Privacy

Modern surveillance technology has fundamentally changed the relationship between citizens and government.

Automated license plate readers, facial recognition systems, artificial intelligence, and interconnected surveillance databases now make it possible to systematically collect information about individuals on an unprecedented scale.

Information gathered from thousands of individual observations can be combined to reconstruct a person's movements, associations, habits, and activities.

While the Fourth Amendment protects against unreasonable searches and seizures, modern technologies raise constitutional questions that were unimaginable when the Bill of Rights was written.

This proposed amendment seeks to establish that the systematic collection and aggregation of personal information can itself constitute an invasion of privacy, even when individual observations occur in public.

Proposed Constitutional Text

Amendment XXVIII — Discussion Draft

Section 1. Fundamental Right to Privacy

The right of the people to privacy in their persons, communications, movements, associations, personal information, and activities shall not be infringed by the United States or by any State, except as provided by this article.

The exercise of this right shall not depend solely upon whether such information or activities are observable in public or disclosed to third parties.

Section 2. Protection Against Mass Surveillance

Neither the United States nor any State shall establish, operate, authorize, or knowingly utilize systems of indiscriminate or persistent surveillance of the people without individualized legal justification.

The systematic collection, retention, aggregation, or analysis of information concerning an individual for the purpose or effect of tracking their movements, identifying their associations, reconstructing their activities, or creating a comprehensive profile of their behavior shall constitute a search within the meaning of the Fourth Amendment.

Section 3. Protection Against Automated Profiling

No government authority shall employ artificial intelligence, automated recognition systems, biometric identification, automated license plate readers, or comparable technologies to systematically identify, track, classify, or profile individuals without lawful authorization consistent with this article.

The use of automated technology shall not diminish the constitutional protections afforded to the people.

Section 4. Judicial Authorization

Surveillance that constitutes a search under this article shall require a warrant issued upon probable cause, supported by oath or affirmation, and particularly describing the person, information, and duration of the surveillance authorized.

No warrant shall authorize indiscriminate surveillance of the general population.

Congress may provide narrowly tailored exceptions for emergencies involving imminent threats to life or serious bodily injury, subject to prompt judicial review.

Section 5. Prohibition Against Circumvention

Neither the United States nor any State may evade the protections of this article by purchasing, requesting, receiving, or otherwise obtaining information from private entities that the government would be constitutionally prohibited from collecting directly.

No government authority shall compel or induce a private entity to conduct surveillance on its behalf in violation of this article.

Section 6. Enforcement and Remedies

Any person whose rights under this article have been violated shall have access to judicial relief.

Congress shall have power to enforce this article by appropriate legislation, including legislation providing for the suppression of unlawfully obtained evidence, the deletion of unlawfully collected information, and remedies for violations.

Section 7. Preservation of Other Rights

Nothing in this article shall be construed to diminish the protections guaranteed by the First, Fourth, Fifth, Ninth, or Fourteenth Amendments to this Constitution.

What Would This Amendment Protect Against?

The proposed amendment addresses several forms of modern surveillance, including:

Automated License Plate Readers: Large networks of cameras capable of recording vehicle movements and creating searchable travel histories.
Artificial Intelligence Surveillance: Automated systems that identify, classify, or track individuals across multiple locations.
Facial Recognition: Systems that identify individuals and associate their identities with recorded movements or activities.
Government Data Profiling: Combining information from multiple databases to reconstruct an individual's behavior, relationships, and daily activities.
Data Broker Circumvention: Government agencies purchasing personal information from private companies to avoid constitutional search requirements.

The proposal is intended to preserve legitimate criminal investigations conducted with appropriate judicial authorization while establishing protections against indiscriminate surveillance.

Existing Constitutional Foundations

Carpenter v. United States (2018)

The Supreme Court held that government acquisition of extensive historical cellphone location records generally constitutes a search under the Fourth Amendment.

Read the Supreme Court Decision

United States v. Jones (2012)

The Supreme Court held that attaching a GPS tracking device to a vehicle and using it to monitor its monitor its movements constituted a Fourth Amendment search.

Read the Supreme Court Decision

These decisions provide important constitutional foundations, but do not establish a comprehensive prohibition against every form of automated public surveillance.

Proposals for Refinement & Legal Tightening

To ensure this constitutional draft withstands judicial scrutiny and prevents government evasion, legal scholars and law students have suggested several key structural revisions:

Strict Commercial Data Broker Prohibition (Section 5 Revision): Refine language to explicitly ban purchasing, licensing, subpoenaing, or accessing commercially available datasets, geolocation records, or metadata from non-governmental entities without a warrant.
Self-Executing Private Right of Action (Section 6 Revision): Establish that the article is self-executing, granting individuals direct standing to sue government entities for injunctive relief, data expungement, and statutory damages without relying solely on future congressional legislation.
Strict Exclusionary Rule Without Good-Faith Exceptions (Section 6 Revision): Add an explicit clause rendering any unlawfully obtained evidence automatically inadmissible in criminal, civil, or administrative proceedings, overriding judicial "good-faith reliance" exceptions.
Concrete Technical Thresholds (Sections 2 & 3 Revision): Replace subjective terms like "indiscriminate" or "persistent" with objective operational markers—such as defining cross-referencing, relational indexing, or retaining public location data beyond 72 hours as a constitutional search.

Questions for Further Discussion

This amendment is a discussion draft intended to encourage consideration of constitutional protections in an era of increasingly sophisticated surveillance technologies.

Should the government be permitted to continuously collect everyone's movements if access to that information is restricted?
Should indiscriminate collection of personal information itself be unconstitutional?
Should constitutional privacy protections extend directly to certain private corporations and data brokers?
How should the law distinguish ordinary security cameras from interconnected mass-surveillance networks?

These questions are central to defining meaningful privacy protections in the twenty-first century.