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The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution

83 Pages Posted: 28 Jul 2004 Last revised: 13 Jul 2015

Orin S. Kerr

The George Washington University Law School

Abstract

This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.

The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.

Second, legislative privacy protections are significantly stronger than most commentators appreciate. The case of wiretapping is instructive. While Fourth Amendment scholars often view wiretapping as a constitutional field under Katz v. United States and Berger v. New York, wiretapping has long been a primarily statutory field. Even today, wiretapping practice is governed by statutory commands, not constitutional ones. More broadly, Congress has created a wide range of statutory privacy laws that protect privacy in developing technologies where the courts have declined to offer protection.

Third, legislatures have considerable institutional advantages that enable the legislative privacy rules regulating new technologies to be more balanced, comprehensive, and effective than judicially created rules. Rapid technological change makes it difficult for courts to clarify the law. Courts also lack the institutional capacity to readily appreciate existing technology and the impact of different legal rules. In contrast, courts are well equipped to respond to technological change in the context of criminal procedure rules.

Keywords: Fourth Amendment, privacy, technology, Katz

JEL Classification: K10, K14, K42

Suggested Citation

Kerr, Orin S., The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution. 102 Michigan Law Review 801 (2004). . Available at SSRN: https://ssrn.com/abstract=421560

Orin S. Kerr (Contact Author)

The George Washington University Law School ( email )

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HOME PAGE: http://www.law.gwu.edu/orin-s-kerr

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