DIGITAL RUMMAGING

Abstract

The digital world encodes our lives with incriminating clues. The Fourth Amendment—the constitutional protection meant to limit police search powers—has not kept up with the privacy and security threats of these new digital technologies.

This Article offers an alternative Fourth Amendment theory based on the harm of rummaging—a principle that can trace its lineage from the Founding debates around General Warrants and the Writs of Assistance to the Supreme Court’s most recent cases on cell phone location data. Fear of government agents rummaging into private homes and papers motivated the passage of the Fourth Amendment and has remained a doctrinally coherent throughline recurring in Fourth Amendment cases.

This Article develops the “rummaging test” as a new way to see the harms of government collection of digital evidence. The Article excavates rummaging as an original justification for the Fourth Amendment and then demonstrates how the digital rummaging concept perfectly responds to the harms of government surveillance in the digital age.