The Fourth Amendment in the Information Age

Abstract

In 2013, the Supreme Court tacitly conceded that the Expectations of Privacy Test used since 1967 to assess claims of Fourth Amendment violations was inadequate. It asserted that the previous property-based test for Fourth Amendment violations had never, despite widespread agreement to the contrary, been overruled. The Court compounded its artfulness by applying a new, significantly weaker trespass test that, like the Expectations of Privacy Test, enjoys no legal pedigree. This new trespass test, which is to be applied together with the Expectations of Privacy Test, suffers from the same defect as the test it purportedly supplements. It does not require the government to respect private property rights absent probable cause.

Part I describes Olmstead versus United States, an early missed opportunity to have created a pragmatic Fourth Amendment trespass test, that set the stage for the unpredictable and unprincipled jurisprudence that Justice Brandeis’ ill-conceived dissent later inspired. Part II explains how the Expectations of Privacy Test that originated with Katz in 1967 allowed the Court to put sensitive records and communications, as well as contraband, beyond the Fourth Amendment’s scope. Katz also helped turn the ever-growing number of pervasive corporations against their customers and into surveillance agents for the government. Part III demonstrates how Katz’s superfluous and sweeping pronouncements about privacy expectations added no significant constitutional protection that the trespass test it supplanted did not already afford. Instead, it enabled the erosion of significant rights that had existed. Jones consciously perpetuates these flaws, affording courts no help in adjudicating Fourth Amendment claims involving new technology. Part IV shows that, in federal fraud cases, the Court identifies property interests using a pragmatic, flexible, common-law approach consistent with the pre-Katz trespass test. It argues that this same analysis could be applied to Fourth Amendment claims, resolving the problems that the expectations of privacy approach has generated.

Keywords: Fourth Amendment, search, seizure, constitutional law, criminal procedure

JEL Classification: K14, K40, K42