References (655)


Footnotes (275)



Nothing New Under the Sun? A Technologically Rational Doctrine of Fourth Amendment Search

Stephen E. Henderson

University of Oklahoma College of Law

January 5, 2012

Mercer Law Review Vol. 56, No. 507, 2005

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Yet as interpreted by the United States Supreme Court, the Amendment places no restriction on police combing through financial records; telephone, e-mail and website transactional records; or garbage left for collection. Indeed there is no protection for any information knowingly provided to a third party, because the provider is said to retain no reasonable expectation of privacy in that information. As technology dictates that more and more of our personal lives are available to anyone equipped to receive them, and as social norms dictate that more and more information is provided to third parties, this restriction threatens to render the Fourth Amendment a practical nullity. By reviewing some modern technologies (e-mail, millimeter wave concealed weapons detectors, off-the-window eavesdropping, and TEMPEST receivers) we can appreciate the magnitude of the issue and determine how Fourth Amendment jurisprudence must be altered in order to better balance privacy and security in the post-9/11 United States. We must craft definitions of search and reasonableness that account for the impending world in which all information is available to those equipped to receive it. Although restricting the Supreme Court's third party doctrine is a step in the right direction, a better solution is to jettison the doctrine entirely and to rely on a totality-based doctrine of reasonableness. Only in this manner can courts preserve the aims of the Fourth Amendment despite dramatic changes in the technological backdrop.

Number of Pages in PDF File: 57

Keywords: Fourth amendment, technology, search

Open PDF in Browser Download This Paper

Date posted: May 17, 2005 ; Last revised: February 27, 2014

Suggested Citation

Henderson, Stephen E., Nothing New Under the Sun? A Technologically Rational Doctrine of Fourth Amendment Search (January 5, 2012). Mercer Law Review Vol. 56, No. 507, 2005. Available at SSRN: https://ssrn.com/abstract=722125

Contact Information

Stephen E. Henderson (Contact Author)
University of Oklahoma College of Law ( email )
300 Timberdell Road
Norman, OK 73019
United States
405.325.7127 (Phone)
HOME PAGE: http://www.law.ou.edu/content/henderson-stephen-e
Feedback to SSRN

Paper statistics
Abstract Views: 2,085
Downloads: 155
Download Rank: 150,900
References:  655
Footnotes:  275