Fourth Amendment Commons^™

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 …

Big Data And Predictive Reasonable Suspicion, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics …

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.

The Death Penalty On The Streets: What The Eighth Amendment Can Teach About Regulating Police Use Of Force, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

The use of force by police officers has traditionally been analyzed through the lens of Fourth Amendment reasonableness. The Supreme Court has decided that the proper question regarding the excessiveness of police force is whether the police officer acted as a reasonable law enforcement officer. When that police force is fatal — what this Article deems the death penalty on the streets — the legal question is the same, leaving us with an analysis that requires a heavy reliance on the officer's version of events and a host of disagreement on what constitutes appropriate police action. Reasonable minds can, …

Robots In The Home: What Will We Have Agreed To?, Margot E. Kaminski

Publications

A new technology can expose the cracks in legal doctrine. Sometimes a technology resists analogy. Sometimes, through analogies, it reveals inconsistencies in the law, or basic flaws in framing, or in the fit between different parts of the legal system. This Essay addresses robots in the home, and what they reveal about U.S. privacy law. Household robots might not themselves uproot U.S. privacy law, but they will reveal its inconsistencies, and show where it is most likely to fracture. Just as drones are serving as a legislative “privacy catalyst” — encouraging the enactment of new privacy laws as people realize …

Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin

Faculty Scholarship

This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA.

Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when …

Using The Dna Testing Of Arrestees To Reevaluate Fourth Amendment Doctrine, Steven P. Grossman

All Faculty Scholarship

With the advent of DNA testing, numerous issues have arisen with regard to obtaining and using evidence developed from such testing. As courts have come to regard DNA testing as a reliable method for linking some people to crimes and for exonerating others, these issues are especially significant. The federal government and most states have enacted statutes that permit or direct the testing of those convicted of at least certain crimes. Courts have almost universally approved such testing, rejecting arguments that obtaining and using such evidence violates the Fourth Amendment.

More recently governments have enacted laws permitting or directing the …

Consequence, Weapons Of Mass Destruction, And The Fourth Amendment's "No-Win" Scenario, Scott J. Glick

Hofstra Law Faculty Scholarship

This article looks at consequence, with a particular focus on the threatened use of a WMD, to begin a discussion on a new doctrinal solution to the hypothetical. As background, Part I takes a look at cardinal Fourth Amendment principles and rules, as well as the many exceptions to the warrant, probable cause and particularity requirements that the Supreme Court has recognized. Part I also discusses minimization, a well-established privacy enhancing mechanism that normally serves as a back-end check on the government’s conduct, to determine whether it can serve as a front-end substitute for the Fourth Amendment’s particularity requirement. Based …

Rights, Remedies, And The Quantum And Burden Of Proof, Joelle A. Moreno

Faculty Publications

It is tempting to commemorate the 2014 centenary of the exclusionary rule by celebrating our historically progressive role in constitutional rights protection, but those familiar with the facts know that Fourth Amendment violations persist unabated. As New Yorkers consider Judge Scheindlin’s damning assessment of police stop-and-frisk practices, and the country erupts in protests following fatal police encounters, are legal scholars who continue to pontificate on constitutional bona fides addressing “real” Fourth Amendment questions?

Traditional academic abstraction and artificial doctrinal divides obscure the fact that rights and remedies are defined by their operation. Constitutional rights have no value if, after they …

Substitute Arguments In Constitutional Law, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In this article, I argue that that substitution is crucial to our practice of constitutional law. Of course, if one wished, one could easily extend the domain of substitution beyond these boundaries. Substitute arguments are an important aspect of law more generally and, indeed, of life. I have nonetheless chosen to limit my discussion to constitutional substitution because, I believe, overt discussion of substitution in this particular area illuminates important aspects of our constitutional regime-–aspects that substitution itself regularly obscures. To put my central point directly, I hope to show that constitutional law amounts to one, giant substitute argument.

Following The Script: Narratives Of Suspicion In Terry Stops In Street Policing, Jeffery Fagan, Amanda Geller

Faculty Scholarship

Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts in which police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment …

The Un-Territoriality Of Data, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Territoriality looms large in our jurisprudence, particularly as it relates to the government’s authority to search and seize. Fourth Amendment rights turn on whether the search or seizure takes place territorially or extraterritorially; the government’s surveillance authorities depend on whether the target is located within the United States or without; and courts’ warrant jurisdiction extends, with limited exceptions, only to the borders’ edge. Yet the rise of electronic data challenges territoriality at its core. Territoriality, after all, depends on the ability to define the relevant “here” and “there,” and it presumes that the “here” and “there” have normative significance. The …

Widening The Aperture On Fourth Amendment Interests: A Comment On Orin Kerr's The Fourth Amendment And The Global Internet, David G. Delaney

Articles by Maurer Faculty

Physical-world law may not be suitable for cyberspace. For example, the Supreme Court's "sufficient connection" test in U.S. v. Verdugo-Urquidez (1990) is inconsistent with the century-long trend for courts to find greater constitutional protections for those subject to U.S. jurisdiction outside the United States. Courts must maintain flexibility to conceive of a Fourth Amendment that does not depend exclusively on territory to fulfill its twin aims of ordering government and enabling redress of liberty infringements. Federal and state courts and legislatures addressing searches, seizures, and surveillance in cyberspace should seek simple rules that can easily adapt as cyberspace and government …

The Dawn Of Social Intelligence (Socint), Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

More information about citizens’ lives is recorded than ever before. Because the data is digitized, it can be accessed, analyzed, shared, and combined with other information to generate new knowledge. In a post-9/‌11 environment, the legal standards impeding access to such data have fallen. Simultaneously, the advent of global communications and cloud computing, along with network convergence, have expanded the scope of information available. The U.S. government has begun to collect and to analyze the associated data.

The result is the emergence of what can be termed “social intelligence” (SOCINT), which this Article defines as the collection of digital data …

High Technology, Consumer Privacy, And U.S. National Security, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Documents released over the past year detailing the National Security Agency’s (“NSA”) telephony metadata collection program and interception of international content under the Foreign Intelligence Surveillance Act (FISA) implicated U.S. high technology companies in government surveillance. The result was an immediate, and detrimental, impact on U.S. corporations, the economy, and U.S. national security.

The first Snowden documents, printed on June 5, 2013, revealed that the government had served orders on Verizon, directing the company to turn over telephony metadata under Section 215 of the USA PATRIOT Act. The following day, The Guardian published classified slides detailing how the NSA had …

Resisting Wholesale Electronic Invasion Of The Fourth Amendment, Michael E. Tigar

Faculty Scholarship

No abstract provided.

The Supreme Digital Divide, Mary Graw Leary

Scholarly Articles

Society has long struggled with the meaning of privacy in a modern world. This struggle is not new. With the advent of modern technology and information sharing, however, the challenges have become more complex. Socially, Americans seek to both protect their private lives, and also to utilize technology to connect with the world. Commercially, industries seek to obtain information from individuals, often without their consent, and sell it to the highest bidder. As technology has advanced, the ability of other individuals, institutions, and governments to encroach upon this privacy has strengthened. Nowhere is this tension between individual privacy rights and …