The Fourth Amendment in a Digital World
135 Pages Posted: 9 Sep 2016 Last revised: 11 Aug 2017
Date Written: 2017
Fourth Amendment doctrines created in the 1970s and 1980s no longer reflect how the world works. The formal legal distinctions on which they rely — (a) private versus public space, (b) personal information versus third party data, (c) content versus non-content, and (d) domestic versus international — are failing to protect the privacy interests at stake. Simultaneously, reduced resource constraints are accelerating the loss of rights. The doctrine has yet to catch up with the world in which we live. A necessary first step for the Court is to reconsider the theoretical underpinning of the Fourth Amendment, to allow for the evolution of a more effective normative framing. Failure to do so will mean the continued retraction of Fourth Amendment protections.
Keywords: Fourth Amendment, digital, digitization, Katz, CSLI, cell site location information, federalist, houses, Olmstead v. United States, Olmstead, Blackstone, Ex parte Jackson, mere evidence, Boyd, Gouled, Goldman v. United States, Brandeis, Warren, Silverman v. United States, informer doctrine
Suggested Citation: Suggested Citation