Abstract

http://ssrn.com/abstract=2323543
 


 



The Fourth Amendment and Surveillance in a Digital World


Arthur Leavens


Western New England University School of Law

2013

Journal of Civil Rights and Economic Development (JCRED), 2014, Forthcoming
Western New England University School of Law Legal Studies Research Paper No. 13-13

Abstract:     
Technology has transformed government surveillance and opened traditionally private information to official scrutiny. The current privacy-based approach to the Fourth Amendment is unable to cope with the changes. This Article offers a solution to the problems that technological surveillance techniques present. Starting with the introduction of the approach in Katz, the Article reviews the development of the privacy-based approach. It then looks at three 21st century Supreme Court cases that grappled with applying the Katz test to advanced technological surveillance techniques: Kyllo, Quon, and Jones. These cases demonstrate the problems that the privacy-based approach creates and the need for an alternative.

Rather than trying to repair the privacy-based approach’s short-comings, this Article recommends adopting a new approach - one that returns to the amendment’s text, interpreting "searches" to include all investigative techniques aimed at gathering information, thus subjecting all governmental surveillance to the amendment’s reasonableness mandate. The Fourth Amendment would have a broadened reach and its protections would no longer hinge on whether personal information might somehow be public, not private. After explaining how the new approach might function, the Article offers some tentative thoughts, as well as cautions, concerning the impact of a Fourth Amendment expansion on the presumption that to be reasonable, a search must be supported by a warrant.

Number of Pages in PDF File: 33

Keywords: Fourth Amendment, surveillance, Katz, privacy-based approach, reasonableness, searches, privacy, public information

Accepted Paper Series





Download This Paper

Date posted: September 12, 2013 ; Last revised: October 1, 2014

Suggested Citation

Leavens, Arthur, The Fourth Amendment and Surveillance in a Digital World (2013). Journal of Civil Rights and Economic Development (JCRED), 2014, Forthcoming; Western New England University School of Law Legal Studies Research Paper No. 13-13. Available at SSRN: http://ssrn.com/abstract=2323543

Contact Information

Arthur Leavens (Contact Author)
Western New England University School of Law ( email )
1215 Wilbraham Road
Springfield, MA 01119
United States

Feedback to SSRN


Paper statistics
Abstract Views: 201
Downloads: 55
Download Rank: 225,791

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.328 seconds