D.E. Wright has posted Fusion Architecture: Standing Governmental Capability and the Fourth Amendment on SSRN. Here is the abstract:
Fourth Amendment doctrine evaluates searches. It asks whether a particular governmental intrusion, upon a particular person, was reasonable, and it renders a judgment that governs the intrusion and little else. That method served the doctrine for as long as the governmental capabilities worth examining could be isolated as discrete acts. It no longer can. Modern domestic intelligence capability arises not from individual surveillance technologies but from the standing integration of many independently lawful systems: municipal sensors, commercial platforms, regional fusion centers, federal query access, cloud storage, and computational analysis. Each component is lawful, each is locally justified, and none is a search in the doctrinal sense. Their integration produces a persistent governmental capacity to identify, locate, and reconstruct the lives of ordinary people that no component holds alone and that no institution authorized.
This Article names that object and offers it as a constitutional concept. Fusion Architecture is the distributed integration of governmental, commercial, and computational systems that collectively generate intelligence capabilities beyond those possessed by any individual participant. Building on the author’s prior accounts of Proxy Accretion, which explains how such capability accumulates, and Capability-Based Constitutionalism, which explains why standing capability rather than conduct is the constitutional object, the Article supplies the missing third term: where the capability resides. It resides in the architecture itself.
The central claim is that the unit of constitutional review is wrong: the Fourth Amendment should evaluate standing governmental capability, not only individual searches, and this reading restores rather than expands the Amendment’s original structure. The general warrant and the writs of assistance were void as instruments, condemned for the standing capability they created and not for any particular search they produced. The recent aggregation decisions, from Jones through Carpenter to Chatrie, have begun to recover that structural concern under the pressure of digital records, without supplying a framework to evaluate distributed capability as such. This Article supplies one. It defines Fusion Architecture, specifies its layers, tests the framework against a municipal case study and the national pattern it instantiates, shows why conventional justiciability doctrines framed for case-by-case litigation are structurally inadequate to a standing capability, and proposes constitutional safeguards keyed to functional capability thresholds rather than to isolated investigative events.
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