Academic journal article Harvard Journal of Law & Technology

Homing In: Technology's Place in Fourth Amendment Jurisprudence

Academic journal article Harvard Journal of Law & Technology

Homing In: Technology's Place in Fourth Amendment Jurisprudence

Article excerpt

TABLE OF CONTENTS  I. INTRODUCTION II. FOURTH AMENDMENT: WHAT IS A SEARCH? III. ARTICULATED RULES    A. Technology and Historically Private Places    B. Technology and Physical Trespass IV. THE RULES' STRENGTHS    A. Capabilities, Not Mechanics    B. Piecemeal Rules May Be the Best Way To Deal with      Evolving Technology    C. Administrability for Law Enforcement V. THE RULES' LIMITATIONS    A. DNA Typing    B. Encryption    C. Private Communications in Public Places VI. CONCLUSION 


Fourth Amendment law is often called "unruly" because "[w]ith so many decided cases and so few agreed-upon principles at work, trying to understand the Fourth Amendment is a bit like trying to put together a jigsaw puzzle with several incorrect pieces: No matter which way you try to assemble it, a few pieces won't fit." (1) One potential reason for this unruliness is that technological innovation has thrown a wrench into the Fourth Amendment's legal development. As soon as one method of crime-solving is implemented and accepted, a newer, more advanced, and potentially more intrusive version debuts that sets us all back on edge, and back into a position of constitutional uncertainty.

For its part, the Supreme Court has faced and answered difficult questions about technology's role in privacy and criminal procedure in a generally satisfying manner. Through its holdings, the Court has generated two clear rules pertaining to technology in this space. (2) First, it has made clear that government agencies using technology to gain access to and gather data from a traditionally protected (private) space without a warrant will not be tolerated. (3) Second, no government will be allowed to engage in warrantless physical trespass upon the property of the defendant in order to gather information. (4) The coupling of these two rules, combined with the more flexible "reasonable expectation of privacy" test, yields decisions regarding technology that are generally sensible because Justices need not understand the mechanics of technology to apply them. (5) They also foster other benefits: flexibility in the face of new innovation and administrability for law enforcement.6

A danger lies, of course, in the areas that escape these clear delineations. Further innovation will continue to challenge the Court if its gaps are left unfilled, which may be a slow process absent a one-size-fits-all scheme. (7) Part II outlines what constitutes a search under the Fourth Amendment. Part III discusses the two bright-line rules that the Court has handed down. Part IV addresses the strengths of those bright-line rules, and why we may not need, or want, more guidance at this stage. Part V analyzes the challenges posed by the application of the reasonable expectation of privacy test in general, and also specific technologies and situations left uncovered by the Court's articulated rules: DNA, encryption, and extreme sense-enhancing technology in public spaces. Part VI concludes.


The text of the Fourth Amendment offers the following protections:

    The right of the people to be secure in their persons,    houses, papers, and effects, against unreasonable    searches and seizures, shall not be violated, and no    Warrants shall issue, but upon probable cause, supported    by Oath or affirmation, and particularly describing    the place to be searched, and the persons or    things to be seized. (8) 

In other words, the government must acquire a warrant supported by probable cause in order to conduct searches and seizures, and illegally obtained evidence will be excluded from court proceedings. (9) Held to apply to the states in 1961, (10) the Fourth Amendment has courts ask a series of questions to determine whether government activity is constitutional. Since the Amendment protects against searches and seizures, courts first ask a threshold question: Has a search occurred at all? …

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