Document Type



32 NYU Rev. L. & Soc. Change 517 (2008)


This essay applies Judith Butler’s theory of identity performance – the idea that we create our identities by acting in ways designed to leave a particular impression – to the Fourth Amendment. As a jumping off point for that analysis, it details the FBI’s extensive surveillance of Martin Luther King, JR. That surveillance may have altered King’s behavior. It thus conflicted with a bedrock principle of our government, the idea that people ought to be able to self-actualize by behaving as they see fit.

The essay suggests that our current Fourth Amendment jurisprudence fails to adequately curtail surveillance because it improperly defines the threshold issue of when the government’s use of new surveillance technology constitutes a search. It thus critically reviews the Olmstead protected areas model, the Katz protected interests model, and the Kyllo hybrid model of the Fourth Amendment.

Ultimately, the essay argues that Butler’s theories help us think about the appropriate model. Butler’s basic idea is that masculine or feminine actions do not express an essential self. Instead, we take our cues from cultural norms for how people who are masculine or feminine should act. That process is intersubjective, since the behaviors of others influence how our own identity will be perceived. Since performance constitutes identity, safeguarding the ability of individuals to behave as they see fit is crucial to allowing the possibility of self actualization. As the FBI surveillance of King demonstrates, surveillance can prevent people from performing as they see fit. The essay concludes that we should adopt a Fourth Amendment model that assures that new surveillance technology comes under Fourth Amendment scrutiny.

Date of Authorship for this Version

April 2009