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Searching Secrets

Nita A. Farahany

Duke University School of Law; Duke University - Institute for Genome Sciences & Policy

April 2012

University of Pennsylvania Law Review, Vol. 160, No. 1239, 2012
Vanderbilt Law and Economics Research Paper No. 12-16
Vanderbilt Public Law Research Paper No. 12-18

A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated protected information like the “content” inside. That metaphor is flawed because it focuses exclusively on whether information is secluded and assigns no value to the substantive information itself. This Article explores the descriptive potential of intellectual property law as a metaphor to describe current Fourth Amendment search and seizure law. It applies this new metaphor to identifying, automatic, memorialized, and uttered evidence to solve current riddles and predict how the Fourth Amendment will apply to emerging technology. Unlike real property law, intellectual property law recognizes that who authored information — and not just how or where it was stored — informs the individual interests at stake in that information. The exclusive rights of authors, including nondisclosure, are interests recognized by copyright law. Recognizing the secrecy interests of individuals has broad implications for the Fourth Amendment in the information age. Together with real property law, an intellectual property law metaphor better describes emerging doctrine, which has required greater government justification to search certain categories of information. But it also reveals the normative shortcomings of current doctrine when the secrets the government seeks are automatically generated information that arises from computer activities, via GPS tracking, or are emitted by our brains.

Number of Pages in PDF File: 71

Keywords: 4th Amendment, search and seizure, reasonableness, privacy, secrecy, seclusion, neuroscience, cell phones, computers, neuroscience, brains, automatic, identifying, memorialized, utterances

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Date posted: May 12, 2012  

Suggested Citation

Farahany, Nita A., Searching Secrets (April 2012). University of Pennsylvania Law Review, Vol. 160, No. 1239, 2012; Vanderbilt Law and Economics Research Paper No. 12-16; Vanderbilt Public Law Research Paper No. 12-18. Available at SSRN: https://ssrn.com/abstract=2055730

Contact Information

Nita A. Farahany (Contact Author)
Duke University School of Law ( email )
210 Science Drive
Box 90362
Durham, NC 27708
United States
HOME PAGE: http://www.law.duke.edu/fac/farahany

Duke University - Institute for Genome Sciences & Policy ( email )
240 North Building
Box 90141
Durham, CA 27708
United States
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