Fourth Amendment Commons^™

Wrong Search At The Wrong Time: Keyword Search Warrants And The Fourth Amendment, Nicole Chan

Articles

This Note will advocate for the view that when presented with the issue, state and federal courts should establish that keyword search warrants are unconstitutional because they violate the Fourth Amendment. Keyword search warrants cannot meet the Fourth Amendment’s requirements of probable cause and particularity because the subjects of the search cannot be identified until after the search is completed. These warrants are unnecessary and have the potential of implicating millions of internet users who have no connection to a crime. This Note will contend that individuals have a reasonable expectation of privacy in their search history data, and that …

Evolving Privacy Protections For Emerging Machine Learning Data Under Carpenter V. United States, Emily Nicolella

FIU Law Review

The Fourth Amendment’s third-party doctrine eliminates an individual’s reasonable expectation of privacy in information they willingly turn over to third parties. Government scrutiny of this information is not considered a search under the Fourth Amendment and is therefore not given constitutional protections. In the 2018 case Carpenter v. United States, the Supreme Court created an exception to the third-party doctrine. In Carpenter, a case involving the warrantless use of cell site location information (CSLI) in a criminal investigation, the Court held that individuals do have a reasonable expectation of privacy regarding CSLI. According to Chief Justice Roberts, despite the necessary …

The World Moved On Without Me: Redefining Contraband In A Technology-Driven World For Youth Detained In Washington State, Stephanie A. Lowry

Seattle University Law Review

If you ask a teenager in the United States to show you one of their favorite memories, they will likely show you a picture or video on their cell phone. This is because Americans, especially teenagers, love cell phones. Ninety-seven percent of all Americans own a cell phone according to a continuously updated survey by the Pew Research Center. For teenagers aged thirteen to seventeen, the number is roughly 95%. For eighteen to twenty-nine-year-olds, the number grows to 100%. On average, eight to twelve-year-old’s use roughly five and a half hours of screen media per day, in comparison to thirteen …

Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin

Scholarly Works

As the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence …

Facial Recognition And The Fourth Amendment, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

Facial recognition offers a totalizing new surveillance power. Police now have the capability to monitor, track, and identify faces through networked surveillance cameras and datasets of billions of images. Whether identifying a particular suspect from a still photo, or identifying every person who walks past a digital camera, the privacy and security impacts of facial recognition are profound and troubling.

This Article explores the constitutional design problem at the heart of facial recognition surveillance systems. One might hope that the Fourth Amendment – designed to restrain police power and enacted to limit governmental overreach – would have something to say …

Wire(Less) Tapping: Protecting Arkansans' Fourth Amendment Right In The Era Of The Cloud, Erin James

Arkansas Law Review

Every day we surround ourselves with dozens of devices that monitor our every move, every request, all connecting with one another and sending massive amounts of data back to the device manufacturers. The idea of the prosecution placing the little black cylinder of your Amazon Alexa on the witness stand and asking Alexa to testify against you seems like something pulled from an Orwellian nightmare. But, in reality, it is already occurring.

Cell-Site Location Information And The Privacies Of Life: The Impact Of Carpenter V. United States, Trevor Moore

Loyola of Los Angeles Law Review

No abstract provided.

Protecting Online Privacy In The Digital Age: Carpenter V. United States And The Fourth Amendment’S Third-Party Doctrine, Cristina Del Rosso, Carol M. Bast

Catholic University Journal of Law and Technology

The goal of this paper is to examine the future of the third-party doctrine with the proliferation of technology and the online data we are surrounded with daily, specifically after the Supreme Court’s decision in Carpenter v. United States. It is imperative that individuals do not forfeit their Constitutional guarantees for the benefit of living in a technologically advanced society. This requires an understanding of the modern-day functional equivalents of “papers” and “effects.”

Looking to the future, this paper contemplates solutions on how to move forward in this technology era by scrutinizing the relevancy of the third-party doctrine due …

Saving America’S Privacy Rights: Why Carpenter V. United States Was Wrongly Decided And Why Courts Should Be Promoting Legislative Reform Rather Than Extending Existing Privacy Jurisprudence, David Stone

St. Mary's Law Journal

Privacy rights are under assault, but the Supreme Court’s judicial intervention into the issue, starting with Katz v. United States and leading to the Carpenter v. United States decision has created an inconsistent, piecemeal common law of privacy that forestalls a systematic public policy resolution by Congress and the states. In order to reach a satisfactory and longlasting resolution of the problem consistent with separation of powers principles, the states should consider a constitutional amendment that reduces the danger of pervasive technologyaided surveillance and monitoring, together with a series of statutes addressing each new issue posed by technological change as …

The Fourth Amendment And New Technologies: Constitutional Myths And The Case For Caution, Orin S. Kerr

Orin Kerr

To one who values federalism, federal preemption of state law may significantly threaten the autonomy and core regulatory authority of The Supreme Court recently considered whether a1mmg an infrared thermal imaging device at a suspect's home can violate the Fourth Amendment. Kyllo v. United States announced a new and comprehensive rule: the government's warrantless use of senseenhancing technology that is "not in general use" violates the Fourth Amendment when it yields "details of the home that would previously have been unknowable without physical intrusion." Justice Scalia's majority opinion acknowledged that the Court's rule was not needed to resolve the case …

Location Tracking And Digital Data: Can Carpenter Build A Stable Privacy Doctrine?, Evan H. Caminker

Articles

In Carpenter v United States, the Supreme Court struggled to modernize twentieth-century search and seizure precedents for the “Cyber Age.” Twice previously this decade the Court had tweaked Fourth Amendment doctrine to keep pace with advancing technology, requiring a search warrant before the government can either peruse the contents of a cell phone seized incident to arrest or use a GPS tracker to follow a car’s long-term movements.

Carpenter's Legacy: Limiting The Scope Of The Electronic Private Search Doctrine, Sarah A. Mezera

Michigan Law Review

One of the most significant challenges confronting courts and legal scholars in the twenty-first century is the application of Fourth Amendment doctrine to new technology. The circuit split over the application of the private search doctrine to electronic devices exemplifies how courts struggle to apply old doctrines to new circumstances. Some courts take the position that the old doctrine should apply consistently in the new context. Other courts have changed the scope of the old doctrine in order to account for the change in circumstances. The Supreme Court took the latter position in Carpenter v. United States and held that …

Chilling: The Constitutional Implications Of Body-Worn Cameras And Facial Recognition Technology At Public Protests, Julian R. Murphy

Washington and Lee Law Review Online

In recent years body-worn cameras have been championed by community groups, scholars, and the courts as a potential check on police misconduct. Such has been the enthusiasm for body-worn cameras that, in a relatively short time, they have been rolled out to police departments across the country. Perhaps because of the optimism surrounding these devices there has been little consideration of the Fourth Amendment issues they pose, especially when they are coupled with facial recognition technology (FRT). There is one particular context in which police use of FRT equipped body-worn cameras is especially concerning: public protests. This Comment constitutes the …

From Storefront To Dashboard: The Use Of The Americans With Disabilities Act To Govern Websites, Kelby S. Carlson

Catholic University Law Review

The question of the effects of technological change on the interpretation of statutes is a complicated one. Particularly for statutes that govern a broad range of issues, the advent of new technology can precipitate re-examination of the rationale behind, and nature of, the relevant law. The Americans with Disabilities Act was enacted, in part, to give Americans with disabilities greater access to public space, allowing them to enjoy the advantages such access offers on an equal footing with the able-bodied. The adoption of digital technology across society and, in particular, the widespread ubiquity of the internet now raise questions about …

Fourth Amendment Constraints On The Technological Monitoring Of Convicted Sex Offenders, Ben A. Mcjunkin, J. J. Prescott

Articles

More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices. Many offenders will be monitored for life. The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as ‘‘civil’’ in character—and courts have seemed to agree. In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil character of …

Steering (Or Not) Through The Social And Legal Implications Of Autonomous Vehicles, Melissa L. Griffin

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

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 …

Bulk Biometric Metadata Collection, Margaret Hu

Scholarly Articles

Smart police body cameras and smart glasses worn by law enforcement increasingly reflect state-of-the-art surveillance technology, such as the integration of live-streaming video with facial recognition and artificial intelligence tools, including automated analytics. This Article explores how these emerging cybersurveillance technologies risk the potential for bulk biometric metadata collection. Such collection is likely to fall outside the scope of the types of bulk metadata collection protections regulated by the USA FREEDOM Act of 2015. The USA FREEDOM Act was intended to bring the practice of bulk telephony metadata collection conducted by the National Security Agency (“NSA”) under tighter regulation. In …

Katz V. United States: Back To The Future?, Michael Vitiello

University of Richmond Law Review

No abstract provided.

Body Cameras And The Path To Redeem Privacy Law, Woodrow Hartzog

Faculty Scholarship

From a privacy perspective, the movement towards police body cameras seems ominous. The prospect of a surveillance device capturing massive amounts of data concerning people’s most vulnerable moments is daunting. These concerns are compounded by the fact that there is little consensus and few hard rules on how and for whom these systems should be built and used. But in many ways, this blank slate is a gift. Law and policy makers are not burdened by the weight of rules and technologies created in a different time for a different purpose. These surveillance and data technologies will be modern. Many …

The Outer Limits: Imsi-Catchers, Technology, And The Future Of The Fourth Amendment, Ryan C. Chapman

Pepperdine Law Review

Recent advances in technology are posing new challenges for a legal system based on decades-old precedent. Nowhere is this more apparent than in law enforcement’s warrantless use of IMSI Catchers. These devices mimic a cell phone tower, and when the device is activated, cell phones will naturally connect to them. Law enforcement officers can use those intercepted cell phone signals to track a suspect’s movements in real time with startling accuracy. Scholarly commentary on these devices has largely concluded that their use requires a warrant. This Comment engages in a close examination of Fourth Amendment precedent and argues that, as …

Preventing An Air Panopticon: A Proposal For Reasonable Legal Restrictions On Aerial Surveillance, Jake Laperruque

University of Richmond Law Review

No abstract provided.

Riley And Abandonment: Expanding Fourth Amendment Protection Of Cell Phones, Abigail Hoverman

Northwestern University Law Review

In light of the privacy concerns inherent to personal technological devices, the Supreme Court handed down a unanimous decision in 2014 recognizing the need for categorical heightened protection of cell phones during searches incident to arrest in Riley v. California. This Note argues for expansion of heightened protections for cell phones in the context of abandoned evidence because the same privacy concerns apply. This argument matters because state and federal courts have not provided the needed protection to abandoned cell phones pre- or post-Riley.

Keep Out! The Efficacy Of Trespass, Nuisance And Privacy Torts As Applied To Drones, Hillary B. Farber

Faculty Publications

The drone industry is burgeoning and there is boundless excitement over the potential civil and commercial applications of these aerial observers. Drones are also fun recreational toys that have more capabilities than their predecessor - the remote controlled helicopter. But along with the benefits comes the potential for misuse. More and more frequently concerned spectators are reporting drones flying around the windows of homes, backyards, and at beaches and sporting events. In some places people are even shooting them down.

We have entered a new frontier of aerial observation with the unmanned aircraft. As is often the case with new …

Digital Technology And Analog Law: Cellular Location Data, The Third-Party Doctrine, And The Law‘S Need To Evolve, Justin Hill

Law Student Publications

This comment explores how broader shifts in Fourth Amendment doctrine may affect the government's collection of Cell Site Location Information (CSLI) moving forward. It consists of three parts. Part I examines the technological underpinnings of cellular networks. The issue is frequently litigated, but few in the legal community have a real grasp on the technology. A nuanced understanding of the technology is crucial when examining the accuracy of CSLI or how the third-party doctrine ought to apply. This comment consolidates and simplifies the technical workings of cellular networks to enable better and more informed answers. Last, drawing on this understanding, …

The 2016 Amendments To Criminal Rule 41: National Search Warrants To Seize Cyberspace, “Particularly” Speaking, Devin M. Adams

Law Student Publications

George Orwell's dystopia, with the ever-watchful Big Brother, has seemingly become a reality with the recently passed amendments to Rule 41 of the Federal Rules of Criminal Procedure. Rule 41, governing searches and seizures, now permits magistrate judges to authorize agents- under a single warrant- to "remotely access," and simultaneously search, copy and seize information from an infinite number of unknown electronic devices in multiple districts anywhere in the country. The unlimited jurisdiction provision is triggered when a device's location is obscured through "technological means," or if agents are investigating computer crimes in five or more districts- regardless of whether …

Policing Predictive Policing, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

Predictive policing is sweeping the nation, promising the holy grail of policing – preventing crime before it happens. Police have embraced predictive analytics and data-driven metrics to improve law enforcement tactics, practice, and strategy. Predictive “hot spots” become targets for intensive police surveillance. Targeted “hot people” become suspects. In big cities and small towns, data-based predictions drive police patrol schedules. Risk assessment algorithms target suspicious individuals. Increased data collection fuels a growing feedback loop requiring more robust data crunching systems.All of these predictive innovations share one thing in common: a belief that crime can be understood by identifying and analyzing …

Carpenter V. United States: Brief Of Scholars Of Criminal Procedure And Privacy As Amici Curiae In Support Of Petitioner, Andrew Ferguson

Articles in Law Reviews & Other Academic Journals

Amici curiae are forty-two scholars engaged in significant research and/or teaching on criminal procedure and privacy law. This brief addresses issues that are within amici’s particular areas of scholarly expertise. They have a shared interest in clarifying the law of privacy in the digital era, and believe that a review of scholarly literature on the topic is helpful to answering the question in this case. This brief is co-authored by Harry Sandick, Kathrina Szymborski, & Jared Buszin of Patterson Belknap Webb & Tyler LLP.Carpenter v. United States presents an opportunity to reconsider the Fourth Amendment in the digital age. Cell …

Network Investigation Techniques: Government Hacking And The Need For Adjustment In The Third-Party Doctrine, Eduardo R. Mendoza

St. Mary's Law Journal

Modern society is largely dependent on technology, and legal discovery is no longer limited to hard-copy, tangible documents. The clash of technology and the law is an exciting, yet dangerous phenomena; dangerous because our justice system desperately needs technological progress. The clash between scientific advancement and the search for truth has recently taken an interesting form—government hacking. The United States Government has increasingly used Network Investigation Techniques (NITs) to target suspects in criminal investigations. NITs operate by identifying suspects who have taken affirmative steps to conceal their identity while browsing the Internet. The hacking technique has become especially useful to …

Knowledge And Fourth Amendment Privacy, Matthew Tokson

Northwestern University Law Review

This Article examines the central role that knowledge plays in determining the Fourth Amendment’s scope. What people know about surveillance practices or new technologies often shapes the “reasonable expectations of privacy” that define the Fourth Amendment’s boundaries. From early decisions dealing with automobile searches to recent cases involving advanced information technologies, courts have relied on assessments of knowledge in a wide variety of Fourth Amendment contexts. Yet the analysis of knowledge in Fourth Amendment law is rarely if ever studied on its own.

This Article fills that gap. It starts by identifying the characteristics of Fourth Amendment knowledge. It finds, …