Digital Fourth Amendment

Is The Digital Fourth Amendment: Privacy and Policing in Our Online World, by Prof. Orin Kerr worth the read?

Amazon says,

When can the government read your email or monitor your web surfing? When can the police search your phone or copy your computer files? In the United States, the answers come from the Fourth Amendment to the Constitution and its ban on 'unreasonable searches and seizures.'

The Digital Fourth Amendment: Privacy and Policing in Our Online World takes the reader inside the legal world of how courts are interpreting the Fourth Amendment in the digital age. Computers, smartphones, and the Internet have transformed criminal investigations, and even a routine crime is likely to lead to digital evidence. But courts are struggling to apply old Fourth Amendment concepts to the new digital world. Mechanically applying old rules from physical investigations doesn't make sense, as it often leads to dramatic expansions of government power just based on coincidences of computer design.

Written by a prominent law professor whose scholarship has often been relied on by courts in the field, The Digital Fourth Amendment shows how judges must craft new rules for the new world of digital evidence. It explains the challenges courts confront as they translate old protections to a new technological world, bringing the reader up to date on the latest cases and rulings. Informed by legal history and the latest technology, this book gives courts a blueprint for legal change with clear rules for courts to adopt to restore our constitutional rights in the computer age.

For a different take, the Cyberlaw Podcast talks with Prof. Kerr (skip to 6 mins).

The book is part theory, part casebook, part policy roadmap—and somehow still manages to be readable, even for non-lawyers. Orin’s goal? To make sense of how the Fourth Amendment should apply in a world of smartphones, cloud storage, government-preserved Facebook accounts, and surveillance everywhere.

The core notion of the book is “equilibrium adjustment”—the idea that courts have always tweaked Fourth Amendment rules to preserve a balance between law enforcement power and personal privacy, even as technology shifts the terrain. From Prohibition-era wiretaps to the modern smartphone, that balancing act has never stopped. Orin walks us through how this theory applies to search warrants for digital devices, plain view exceptions in the age of limitless data, and the surprisingly murky question of whether copying your files counts as a seizure. It’s very persuasive, I say, if you ignore Congress’s contribution to equilibrium. In some cases, the courts are simply discovering principles in the Fourth Amendment that Congress put in statute decades earlier. Worse, courts (and Orin) have too often privileged their idea of equilibrium over the equilibrium chosen by Congress, ignoring or implicitly declaring unconstitutional compromises between privacy and law enforcement that are every bit as defensible as the courts’.

One example is preservation orders—those quiet government requests that tell internet providers to make a copy of your account just in case. Orin argues that’s a Fourth Amendment search and needs a warrant, even if no one looks at the data yet. But preservation orders without a warrant are authorized by Congress; ignoring Congress’s work should require more than a vague notion of equilibrium rebalancing, or so I argue. Orin is unpersuaded.

We also revisit Carpenter v. United States, the 2018 Supreme Court decision on location tracking, and talk about what it does—and doesn’t—mean for the third-party doctrine. Orin’s take is refreshingly narrow: Carpenter didn’t blow up the doctrine, but it did acknowledge that some records, even held by third parties, are just too revealing to ignore. I argue that Carpenter is the judiciary’s Vietnam war – it has committed troops to an unwinnable effort to replace the third party rule with a doomed series of touchy-feely ad hoc rulings. That said, Orin’s version of the decision, which deserves to be called the Kerr-penter doctrine, is more limited and more defensible than most of the legal (and judicial) interpretations over the last several years.
​
Finally, we talk border searches, network surveillance, and whether the Supreme Court has any idea where to go next. (Spoiler: probably not.)

A la United States v. Brinkman-Coronel, see, Orin Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561 (2009).