Published on April 7th, 2022 📆 | 6434 Views ⚑
0Could Better Technology Lead to Stronger 4th Amendment Privacy Protections?
AmendÂment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasÂonÂable searches and seizures, shall not be violÂated, and no Warrants shall issue, but upon probÂable cause, supporÂted by Oath or affirmÂaÂtion, and particÂuÂlarly describÂing the place to be searched, and the persons or things to be seized.
Judges, defense lawyers, police and prosecÂutors have been fightÂing over the Fourth AmendÂment for 230Â years, and itâs not hard to figure out why. So many of the words in the text are vague. âHouses, papers, and effects, â for example, means more today than they did when James Madison drafÂted the Bill of Rights. So, too, does the clause âthings to be seized.â What things? Seized how and by whom? Only âunreasÂonÂableâ searches and seizures were barred, rememÂber, leavÂing it up to future courts to argue over what is and what is not a âreasÂonÂableâ exerÂcise of police power.
Madison and company knew that some of the ambiÂguÂities contained in the Bill of Rights were necesÂsary to achieve the politÂical compromÂise necesÂsary to ensure ratiÂficÂaÂtion of a docuÂment that changed the way the U.S. governÂment interÂacts with citizens. The drafters also knew that by these ambiÂguÂities, they were passing on tough definÂiÂtional quesÂtions to future judges and legisÂlatÂors to figure out. The same thing happens today, by the way, when Congress enacts ambiguÂous legisÂlaÂtion and then complains that federal judges arenât interÂpretÂing it propÂerly. The late Supreme Court justice Antonin Scalia used to complain about that all the time.
The justices over the centurÂies have developed a series of standÂards theyâve used to determÂine when a search is a search under the Fourth AmendÂment and then whether such a search is âreasÂonÂable.â And because techÂnoÂlogy has ceaseÂlessly evolved over the generÂaÂtions â police once searched for writÂten letters and diarÂies, now they also search for emails and text messages â Fourth AmendÂment standÂards have evolved as well. The law is always catchÂing up to techÂnoÂlogy, and the speed with which it catches up usually is determÂined by the Supreme Court or Congress.
For some answers about these standÂards, I turned to Orin Kerr, author and professor at UC BerkeÂley School of Law. Kerr is known for his scholÂarÂship on crimÂinal procedÂure in general and the Fourth AmendÂment and computer crimes in particÂuÂlar, and heâs frequently at the center of legal and politÂical debates at the interÂsecÂtion of techÂnoÂlogy and privacy rights.
COHEN: There is often great frusÂtraÂtion over the willy-nilly way judges seem to interÂpret and enforce Fourth AmendÂment protecÂtions. You wrote a really interÂestÂing Harvard Law Review article in 2011 in which you described an âequiÂlibÂrium adjustÂmentâ theory of the Fourth AmendÂment. âThe Supreme Court adjusts the scope of Fourth AmendÂment protecÂtion in response to new facts in order to restore the status quo level of protecÂtion, â you wrote. âWhen chanÂging techÂnoÂlogy or social pracÂtice expands governÂment power, the Supreme Court tightÂens Fourth AmendÂment protecÂtion; when it threatens governÂment power, the Supreme Court loosens constiÂtuÂtional protecÂtion.â
A decade later, how has your theory held up? Have the Supreme Court and lower courts done more to harmonÂize what some see as cognitÂive dissonÂance at the heart of Fourth AmendÂment jurisÂpruÂdence, or has the law grown muddier?Â
KERR: I think my theory has held up well. Two of the biggest Fourth AmendÂment cases in the last decade are Riley v. CaliÂforÂnia and Carpenter v. United States, and thatâs exactly what the Supreme Court did in those two cases. In Riley, the Supreme Court held that the search-incidÂent-to-arrest excepÂtion doesÂnât apply to cell phones. The governÂment can always search physÂical propÂerty on a person at the time of arrest, the Court has long held, but under Riley the governÂment needs a warrant to search a cell phone then. That new rule was needed, the Court said, because applyÂing the old rule to new techÂnoÂlogy no longer made sense: ApplyÂing âthat reasÂonÂing to digital data has to rest on its own bottom.â
SimilÂarly, in Carpenter,  the Court held that the Fourth AmendÂment protects historÂical cell-site locaÂtion records. This was needed despite the older cases pointÂing to the opposÂite result, the Court reasoned, to âassure preserÂvaÂtion of that degree of privacy against governÂment that exisÂted when the Fourth AmendÂment was adopÂted." New techÂnoÂlogy of cell phones gave the governÂment access to a new surveilÂlance method, and the Court had to change the old legal rule to ensure that the governÂment didnât have too much power.
Of course, some would still find the law muddled. Some might say that Riley and Carpenter made the law more muddled than before. But I would say the law is just really fact specific. How the Fourth AmendÂment applies depends on the facts, and you have to read a lot of cases to underÂstand what the rules are.
COHEN: Riley v. CaliÂforÂnia was decided in 2014 when Justices Antonin Scalia, Anthony Kennedy, Ruth Bader GinsÂburg, and Stephen Breyer were on the Court. They are all gone or about to be gone now. Carpenter v. United States was decided in 2018 and the majorÂity opinÂion in that case included two justices (GinsÂburg and Breyer) who are gone or who will soon be gone from the court. Whatâs your sense of how the three Trump-nominÂated justices will push or pull Fourth AmendÂment law in one direcÂtion or another? For that matter, whatâs your sense of what a Justice Ketanji Brown JackÂson would bring to the debate over the Fourth AmendÂment? Have you had a chance to compare her views with those of Justice Breyer, the man she would replace?
KERR: The overÂall effect of these newer justices is mixed, and it probÂably depends on the specific doctrine. But I can try to offer an overÂall take just by running through the new justices. First, Justice Brett Kavanaugh tended to be on the governÂmentâs side in Fourth AmendÂment cases back when he was on the DC Circuit, but then he was the fifth vote (together with Chief John Roberts, Breyer, Elena Kagan, and Sonia SotoÂmayor) for the plaintiff in last termâs signiÂficÂant Fourth AmendÂment case, Torres v. Madrid. Second, Justice Neil Gorsuch has a signiÂficÂant liberÂtarian streak, which you can see in his separÂate opinÂion in Carpenter, but he can also end up on the governÂmentâs side in divided cases (as he did in Torres).
Itâs too early to tell how Justice Amy Coney Barrett will be in the Fourth AmendÂment area. Finally, I expect Ketanji Brown JackÂson will favor considÂerÂably more expansÂive Fourth AmendÂment rights than did Breyer, who was a swing vote in Fourth AmendÂment cases. JackÂson is likely to be pretty differÂent. Sheâs a former public defender, and I would guess she will join SotoÂmayor (and perhaps go beyond her) in being most likely to disagree with the governÂment in Fourth AmendÂment cases.Â
In terms of what these new justices will mean for Fourth AmendÂment litigÂaÂtion generÂally, I expect many more Fourth AmendÂment cases will be briefed to the justices using originÂalÂist arguÂments. Briefs tend to be writÂten to the âswing vote, â the justice who is needed to secure a majorÂity and thereÂfore a victory. We donât quite know who the center votes will be in Fourth AmendÂment cases, but Justices Barrett, Gorsuch, Kavanaugh, and Roberts are all possibÂilÂitÂies. I suspect weâll see a lot of originÂalÂist arguÂments being made in Fourth AmendÂment cases to try to persuade those justices.Â
COHEN:Â You wrote a detailed analysis about a first-of-its-kind ruling on geofence warrants and their applicÂaÂtion to Fourth AmendÂment law. GeofenÂcing involves the use of GPS techÂnoÂlogy to create a geographic boundÂary that allows police, relyÂing on Google for example, to track a cell phone userâs locaÂtion. The case is out of Virginia, U.S. v. Chatrie, in which a federal judge suppressed the results of a police search warrant because the warrant gathered geofenÂcing data from a wide swath of people who could not possibly have any relaÂtionÂship to a nearby robbery officers were investÂigÂatÂing. The complicÂated decision raises quesÂtions not just about what privacy expectÂaÂtions people have in the age of locaÂtion-trackÂing on cell phones but whether new techÂnoÂlogy justiÂfies a new way to approach Fourth AmendÂment jurisÂpruÂdence more broadly.
You were skepÂtical of the judgeâs analysis, and you suggest that such searches may not even be subject to Fourth AmendÂment protecÂtions in the first place, but I was struck by what you wrote toward the end of your piece: âOne wonders if the possibÂilÂity that techÂnoÂlogy can enable the execuÂtion of warrants in a more privacy protectÂive way than tradiÂtional warrants is leadÂing [U.S. District Judge M. Hannah] Lauck to in effect seek a new Fourth AmendÂment standÂard that requires warrants to be executed in the most privacy protectÂive way the new techÂnoÂlogy allows.â
Can techÂnoÂlogy at last push Fourth AmendÂment law to a tipping point where federal judges start lookÂing for new standÂards to guide their decisions? I suspect youâll say that no matter what, these cases will necesÂsarÂily be fact-specific, but is there a point where the governÂmentâs use of new surveilÂlance techÂnoÂlogy forces changes in the legal standÂards to which those facts will be applied? And if so, do you have a sense of which justices on the court would be most willÂing to enterÂtain such a change?
KERR:Â I think there are two differÂent quesÂtions. First, can techÂnoÂlogy so expand governÂment power that the Supreme Court will adjust Fourth AmendÂment rules to limit governÂment power? My answer to that is yes, and that is the basic idea of equiÂlibÂrium-adjustÂment that we have been discussÂing. In the blog post, though, I was addressÂing a differÂent quesÂtion: If techÂnoÂlogy permits the governÂment to access informÂaÂtion but also creates the prospect of newer and better privacy protecÂtions than have exisÂted before, should the Fourth AmendÂment require those new greater privacy protecÂtions?
Thatâs part of whatâs interÂestÂing about geofenÂcing warrants, I think. Google can try to get the governÂment to execute those warrants in a more privacy protectÂive way than warrants have been executed previÂously. TradiÂtionÂally, search warrants are executed in a brutal fashÂion: The governÂment breaks in, rifles through everything, and sees everything. Itâs a severe privacy violÂaÂtion. In contrast, Google can (and wants) to careÂfully screen informÂaÂtion from the governÂment, limitÂing what the governÂment can see and limitÂing the identiÂfyÂing informÂaÂtion about whose account it is seeing. The quesÂtion is, if techÂnoÂlogy creates new ways to protect privacy, should the law impose that requireÂment?
As to what the Supreme Court might say to that, the signals are mixed. On one hand, in a case like Missouri v. McNeely, the Court suggesÂted that the ready availÂabÂilÂity of teleÂphone warrants these days might make the warrant requireÂment broader. As warrants become easier to get, the thinkÂing runs, it becomes less burdenÂsome to impose a warrant requireÂment. Thatâs not exactly the same. But itâs a little bit similar, I think. On the other hand, the Court has repeatedly rejecÂted any kind of âleast intrusÂive meansâ search requireÂment under the Fourth AmendÂment. And that cuts the other way.
COHEN: I want to go back to the Torres case for a second because it addresses, or tries to address, the Fourth AmendÂmentâs approach to police use-of-force cases, a topic near and dear to my heart. Torres had to do with whether a suspect was âseizedâ within the meanÂing of the Fourth AmendÂment when an officer tries but fails to subdue that suspect. And the Supreme Court ruled that the attempt alone to seize a suspect â in that case officers firing at a woman fleeÂing in her car â triggered a Fourth AmendÂment analysis. Weâre living in an era where there are more lawsuits alleging excessÂive force by police officers, and certainly more taxpayer-funded legal settleÂments paid by police offiÂcials, and Iâm wonderÂing whether you are seeing the effects of these cases in Fourth AmendÂment law. In other words, how is police reform shapÂing Fourth AmendÂment law?
KERR: Itâs hard to tell, as we canât answer the counÂterÂfacÂtual of what the law would look like otherÂwise. But Iâm skepÂtical that police reforms are shapÂing Fourth AmendÂment law. George Floyd was killed in May 2020. Since then, the Supreme Court has agreed to hear zero new Fourth AmendÂment cases. Thatâs remarkÂable. In a typical term, the Supreme Court hears three or four Fourth AmendÂment cases. This term, for the first time I can recall, it isnât decidÂing any Fourth AmendÂment cases at all. The Court has also turned away a series of petiÂtions asking it to overÂturn qualÂiÂfied immunity, the judge-made legal doctrine used to shield police officers, correcÂtions offiÂcials, and others from liabÂilÂity for their misconÂduct. Justice Thomas has writÂten dissents from deniÂals of certiÂorÂari on this, as he wants the Court to reconÂsider qualÂiÂfied immunity. But the rest of the Court has been silent. Itâs hard to know, but renewed interest in police reforms might be making the justices less likely to step in themÂselves. They may be waitÂing for the elecÂted branches to act. But this is all just specÂuÂlaÂtion. UnforÂtuÂnately, we donât know.
COHEN:Â Letâs end by lookÂing ahead. We know that there will be techÂnoÂloÂgical advances in the next decade that will affect Fourth AmendÂment law. There always are. Does anything in particÂuÂlar stand out to you as someÂthing to watch in the years ahead? Do you see the law and techÂnoÂlogy careenÂing toward some flashÂpoint?
KERR: I donât think there will be flashÂpoints, but Iâm expectÂing continÂued evolÂuÂtion. The lower courts are disagreeÂing on a lot of Fourth AmendÂment issues involving techÂnoÂlogy, and that will likely prompt Supreme Court review in the next few years on those issues. The Supreme Court will probÂably decide how the Fourth AmendÂment applies to long-term pole camera surveilÂlance, if it allows warrantÂless border searches of computers, how the private search reconÂstrucÂtion doctrine (which allows the police to view the results of warrantÂless online searches by private parties) applies to interÂnet providers; what the limits of computer warrants are, and, in the Fifth AmendÂment area, when the governÂment can force people to unlock their phones. As always, stay tuned!
This interÂview has been edited for length and clarÂity.
This discusÂsion is one of several in a BrenÂnan Center series on the Bill of Rights. The interÂview with David Carroll about the Sixth AmendÂment is here, and the interÂview with Carol Steiker on the Eighth AmendÂment is here.
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