Orwell's 1984 and a Fourth Amendment Cybersurveillance Nonintrusion Test

87 Pages Posted: 23 Jan 2018 Last revised: 30 Jan 2018

See all articles by Margaret Hu

Margaret Hu

Washington and Lee University - School of Law

Date Written: January 18, 2018

Abstract

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies.

A cybersurveillance nonintrusion test implicitly suggested by the Supreme Court in United States v. Jones first shifts the vantage point of the Fourth Amendment analysis from an individual-based tangible harm inquiry to an inquiry of a society-wide intangible harm — whether the modern surveillance method creates a “1984 problem” for society. A cybersurveillance nonintrusion test requires the government to justify the intrusion of the surveillance on society. A new test would remediate increasingly ineffective Fourth Amendment jurisprudence currently grounded in property and tort law. The Article argues that the adoption of a cybersurveillance nonintrusion test and the abandonment of the current privacy test is not only required; but, in practice, is already used by the federal courts.

Keywords: 1984 Problem for Society, Cybersurveillance Nonintrusion Test, Fourth Amendment, George Orwell, Individual-Based Tangible Harm Inquiry, Modern Surveillance Methods, Privacy Test, Reasonable Expectation of Privacy, Society-Wide Intangible Harm Inquiry, Surveillance Technologies

JEL Classification: K1, K10, K19, K20, K23, K30

Suggested Citation

Hu, Margaret, Orwell's 1984 and a Fourth Amendment Cybersurveillance Nonintrusion Test (January 18, 2018). Washington Law Review, Forthcoming; Washington & Lee Legal Studies Paper No. 2018-02. Available at SSRN: https://ssrn.com/abstract=3106754

Margaret Hu (Contact Author)

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States

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