Fourth Amendment Commons^™

Customs, Immigration, And Rights: Constitutional Limits On Electronic Border Searches, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The warrantless search of travelers’ electronic devices as they enter and exit the United States is rapidly increasing. While the Supreme Court has long recognized a border-search exception to the Fourth Amendment’s warrant requirement, it applies to only two interests: promoting the duty regime and preventing contraband from entering the country; and ensuring that individuals are legally admitted. The government’s recent use of the exception goes substantially beyond these matters. U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are using it to search electronic devices, and at times the cloud, for evidence of any criminal activity, …

Cybersurveillance Intrusions And An Evolving Katz Privacy Test, Margaret Hu

Scholarly Articles

To contextualize why a new approach to the Fourth Amendment is essential, this Article describes two emerging cybersurveillance tools. The first Cybersurveillance tool, Geofeedia, has been deployed by state and local law enforcement. Geofeedia uses a process known as "geofencing" to draw a virtual barrier around a particular geographic region, and then identifies and tracks public social media posts within that region for predictive policing purposes. The second tool, Future Attribute Screening Technology (FAST), is under development by the United States Department of Homeland Security (DHS). FAST is another predictive policing tool that analyzes physiological and behavioral signals with the …

Game Of Drones: Rolling The Dice With Unmanned Aerial Vehicles And Privacy, Rebecca L. Scharf

Scholarly Works

This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single …

Biometric Cyberintelligence And The Posse Comitatus Act, Margaret Hu

Scholarly Articles

This Article addresses the rapid growth of what the military and the intelligence community refer to as “biometric-enabled intelligence.” This newly emerging intelligence tool is reliant upon biometric databases—for example, digitalized storage of scanned fingerprints and irises, digital photographs for facial recognition technology, and DNA. This Article introduces the term “biometric cyberintelligence” to more accurately describe the manner in which this new tool is dependent upon cybersurveillance and big data’s massintegrative systems.

This Article argues that the Posse Comitatus Act of 1878, designed to limit the deployment of federal military resources in the service of domestic policies, will be difficult …

The Fourth Amendment And Surveillance In A Digital World, Arthur Leavens

Faculty Scholarship

Technology has transformed government surveillance and opened traditionally private information to official scrutiny. The current privacy-based approach to the Fourth Amendment is unable to cope with the changes. This Article offers a solution to the problems that technological surveillance techniques present. Starting with the introduction of the approach in Katz, the Article reviews the development of privacy-based approach. It then looks at three 21st century Supreme Court cases that grappled with applying the Katz test to advanced technological surveillance techniques: Kyllo, Quon, and Jones. These cases demonstrate the problems that the privacy-based approach creates and the …

Beyond The Fourth Amendment: Additional Constitutional Guarantees That Mass Surveillance Violates, Nadine Strossen

Articles & Chapters

The ongoing dragnet communications surveillance programs raise multiple statutory and constitutional problems. Each problem alone, and even more so the whole combination, provides a serious ground at least for vastly curbing such programs, if not ending them. This Article reviews constitutional challenges to these programs to evaluate the likely success of current and future litigants.

Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbulling Laws, Emily Suski

Faculty Publications

For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This …

Bulk Metadata Collection: Statutory And Constitutional Considerations, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The National Security Agency’s bulk collection of telephony metadata runs contrary to Congress’s intent in enacting the 1978 Foreign Intelligence Surveillance Act. The program also violates the statute in three ways: the requirement that records sought be “relevant to an authorized investigation;” the requirement that information could be obtained via subpoena duces tecum; and the steps required for use of pen registers and trap and trace devices. Additionally, the program gives rise to serious constitutional concerns. Efforts by the government to save the program on grounds of third party doctrine are unpersuasive in light of the unique circumstances of …

A Shattered Looking Glass: The Pitfalls And Potential Of The Mosaic Theory Of Fourth Amendment Privacy, David C. Gray, Danielle Keats Citron

Faculty Scholarship

On January 23, 2012, the Supreme Court issued a landmark non-decision in United States v. Jones. In that case, officers used a GPS-enabled device to track a suspect’s public movements for four weeks, amassing a considerable amount of data in the process. Although ultimately resolved on narrow grounds, five Justices joined concurring opinions in Jones expressing sympathy for some version of the “mosaic theory” of Fourth Amendment privacy. This theory holds that we maintain reasonable expectations of privacy in certain quantities of information even if we do not have such expectations in the constituent parts. This Article examines and …

Preserving Privacy In A Digital Age: Lessons Of Comparative Constitutionalism, David Cole

Georgetown Law Faculty Publications and Other Works

In the modern age, we increasingly live our lives through, and accompanied by, digital media. Virtually every transaction or communication that uses such media, as well as every move of mobile phone owners, is recorded. Computers are able to store, transmit, and analyze the data as never before, drawing on multiple sources to construct an intimate picture of our interests, contacts, travels and desires. Private data-mining services, most often used for commercial advertising purposes, can determine: what we read, listen to, and look at; where we travel to, shop, and dine; and with whom we speak or associate. Meanwhile, social …

New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo

All Faculty Scholarship

No abstract provided.

Technological Leap, Statutory Gap, And Constitutional Abyss: Remote Biometric Identification Comes Of Age, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much less the pairing of facial recognition with video surveillance—in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, …

Tied Up In Knotts? Gps Technology And The Fourth Amendment, Renée Mcdonald Hutchins

Faculty Scholarship

Judicial and scholarly assessment of emerging technology seems poised to drive the Fourth Amendment down one of three paths. The first would simply relegate the amendment to a footnote in history books by limiting its reach to harms that the framers specifically envisioned. A modified version of this first approach would dispense with expansive constitutional notions of privacy and replace them with legislative fixes. A third path offers the amendment continued vitality but requires the U.S. Supreme Court to overhaul its Fourth Amendment analysis. Fortunately, a fourth alternative is available to cabin emerging technologies within the existing doctrinal framework. Analysis …