Is the Fourth Amendment Relevant in a Technological Age?
25 Pages Posted: 10 Jan 2011 Last revised: 11 Mar 2014
Date Written: January 4, 2011
Abstract
This work will be a chapter in a forthcoming book in The Future of the Constitution series, edited by Jeffrey Rosen and Benjamin Wittes and published by the Brookings Institute. Over the past 200 years, the Fourth Amendment’s guarantees have been construed largely in the context of what might be called "physical searches" - entry into a house or car; a stop and frisk of a person on the street; or rifling through a person’s private papers. But today, with the introduction of devices that can see through walls and clothes, monitor public thoroughfares twenty-four hours a day, and access millions of records in seconds, police are relying much more heavily on what might be called "virtual searches," investigative techniques that do not require physical access to premises, people, papers or effects and that can often be carried out covertly from far away. The Supreme Court’s current Fourth Amendment jurisprudence - specifically, its "knowing exposure," "general public use," "contraband-specific," "assumption of risk" and "special needs" doctrines - has both failed to anticipate this development and continued to ignore it. This article describes this jurisprudence and how it can foster law enforcement abuse, mission creep, mistaken seizures and physical searches, and an oppressive atmosphere even for the innocent. It then outlines a more technologically-sensitive Fourth Amendment framework.
Keywords: Fourth Amendment, technology, surveillance, data mining, search and seizure, special needs
Suggested Citation: Suggested Citation
Do you have a job opening that you would like to promote on SSRN?
Recommended Papers
-
A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending it
By Orin S. Kerr
-
Searches and Seizures in a Digital World
By Orin S. Kerr
-
The Case for the Third-Party Doctrine
By Orin S. Kerr
-
Brandeis & Warren's 'The Right to Privacy and the Birth of the Right to Privacy'
By Ben Bratman
-
Applying the Fourth Amendment to the Internet: A General Approach
By Orin S. Kerr
-
Buying You: The Government's Use of Fourth-Parties to Launder Data about 'The People'
-
Back to Katz: Reasonable Expectation of Privacy in the Facebook Age