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The Fourth Amendment in a World Without Privacy

Paul Ohm

University of Colorado Law School

March 20, 2012

Mississippi Law Journal, Vol. 81, No. 5, p. 1309, 2012

This Article explores the relationship between private and public surveillance. Every year, companies spend millions of dollars developing new services that track, store, and share the words, movements, and even the thoughts of their customers. Millions now own sophisticated tracking devices (smart phones) studded with sensors and always connected to the Internet. They have been coaxed to use these devices to access fun and valuable services to share more information, more of the time. Our country is rapidly becoming a surveillance society.

Meanwhile, the police can access the records that the surveillance society produces and stores with few impediments. Current Fourth Amendment doctrine — premised on the reasonable expectation of privacy test and elaborated through principles such as assumption of risk, knowing exposure, and general public use — places far fewer hurdles in front of the police when they use the fruits of somebody else’s surveillance than when they do the surveillance themselves. As the surveillance society expands, the police will learn to rely more on the products of private surveillance, and will shift their time, energy, and money away from traditional self-help policing, becoming passive consumers rather than active producers of surveillance. Private industry is destined to become the unwitting research and development arm of the FBI. If we continue to interpret the Fourth Amendment as we always have, we will find ourselves not only in a surveillance society, but also in a surveillance state.

If we believe that the Fourth Amendment can and should survive the coming reach of private surveillance, it is not enough to prescribe mild tweaks to the third-party doctrine. A more thorough reinvention of the Fourth Amendment is in order. We should rebuild the Fourth Amendment atop a foundation of something other than privacy, and this Article extends the work of other scholars who have convincingly suggested that the Fourth Amendment was originally intended and is better interpreted to ensure not privacy but liberty from undue government power.

Number of Pages in PDF File: 48

Keywords: fourth amendment, criminal procedure, privacy, surveillance, Internet, big data, location, cloud

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Date posted: June 4, 2012  

Suggested Citation

Ohm, Paul, The Fourth Amendment in a World Without Privacy (March 20, 2012). Mississippi Law Journal, Vol. 81, No. 5, p. 1309, 2012. Available at SSRN: https://ssrn.com/abstract=2073574

Contact Information

Paul Ohm (Contact Author)
University of Colorado Law School ( email )
401 UCB
Boulder, CO 80309
United States
303-492-0384 (Phone)
303-492-1200 (Fax)

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