Abstract

Is the Fourth Amendment Relevant in a Technological Age

The law of “search and seizure” in the United States derives primarily from United States Supreme Court decisions construing the Fourth Amendment to the United States Constitution, which requires that “searches” of “houses, persons, papers and effects” be “reasonable” and that judicial warrants authorizing searches be based on “probable cause” to believe evidence will be found. Over the past 200 years, the Fourth Amendment's guarantees have been interpreted largely in the context of what might be called “physical searches” – entry into a house or car; a stop and frisk of a person on the street; or rifling through a person's private papers. But today, with the introduction of devices that can see through walls and clothes, monitor public thoroughfares twenty-four hours a day, and access millions of records in seconds, police are relying much more heavily on what might be called “virtual searches,” investigative techniques that do not require physical access to premises, people, papers or effects and that can often be carried out covertly from far away. The Supreme Court's current Fourth Amendment jurisprudence – specifically, its “knowing exposure,” “general public use,” “contraband-specific,” “assumption of risk” and “special needs” doctrines – has both failed to anticipate this development and continued to ignore it, with the result that most virtual searches are left unregulated by the Constitution. This article describes this jurisprudence and how it can foster law enforcement abuse, mission creep, mistaken seizures and physical searches, and an oppressive atmosphere even for the innocent. It then outlines a more technologically-sensitive Fourth Amendment framework. It proposes that every government effort to look for evidence of crime require some justification, but only in proportion to its intrusiveness, so that a computer search of a person's personal records, like a search of a house, would require probable cause, but technologically-enhanced tracking of a person's public movements, like a physical stop on the streets, could be justified on a lesser showing. The article also proposes a framework for analyzing searches of groups, including large-scale data-mining and use of public camera surveillance systems, that would not require individualized suspicion, but rather look at whether the group search is (1) authorized by a legislative process to which the affected group had meaningful access and (2) is conducted in a manner that eliminates discretion.