Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference

Abstract

This essay critiques Professor Orin Kerr's provocative article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004). Increasingly, Fourth Amendment protection is receding from a litany of law enforcement activities, and it is being replaced by federal statutes. Kerr notes these developments and argues that courts should place a thumb on the scale in favor of judicial caution when technology is in flux, and should consider allowing legislatures to provide the primary rules governing law enforcement investigations involving new technologies. Kerr's key contentions are that (1) legislatures create rules that are more comprehensive, balanced, clear, and flexible; (2) legislatures are better able to keep up with technological change; and (3) legislatures are more adept at understanding complex new technologies.

I take issue with each of these arguments. Regarding Kerr's first contention, I argue that Congress has created an uneven fabric of protections that is riddled with holes and weak safeguards. Kerr's second contention - that legislatures are better able to update rules quickly as technology shifts - is belied by the historical record, which suggests Congress is actually far worse than the courts in reacting to new technologies. As for Kerr's third contention, shifting to a statutory regime will not eliminate Kerr's concern with judges misunderstanding technology. In fact, many judicial misunderstandings stem from courts trying to fit new technologies into an old statutory regime that is built around old technologies.

Therefore, while Kerr is right that our attention must focus more on the statutes, he is wrong in urging for a deferential judicial approach to the Fourth Amendment.

Keywords: Fourth Amendment, search, seizure, surveillance, technology, judicial restraint, deference

JEL Classification: D80, H11, O30