Fourth Amendment Commons^™

Disentangling Administrative Searches, Eve Brensike Primus

Articles

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …

Big Brother Is Watching: The Reality Show You Didn't Audition For, Amy Dillard

Oklahoma Law Review

No abstract provided.

The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend …

Cloudy Privacy Protections: Why The Stored Communications Act Fails To Protect The Privacy Of Communications Stored In The Cloud, Ilana R. Kattan

Vanderbilt Journal of Entertainment & Technology Law

The advent of new communications technologies has generated debate over the applicability of the Fourth Amendment's warrant requirement to communications sent through, and stored in, technologies not anticipated by the Framers. In 1986, Congress responded to perceived gaps in the protections of the warrant requirement as applied to newer technologies, such as email, by passing the Stored Communications Act (SCA). As originally enacted, the SCA attempted to balance the interests of law enforcement against individual privacy rights by dictating the mechanisms by which the government could compel a particular service provider to disclose communications stored on behalf of its customers. …

Along For The Ride: Gps And The Fourth Amendment, Stephen A. Josey

Vanderbilt Journal of Entertainment & Technology Law

With the advent of new technologies, the line as to where the Fourth Amendment forbids certain police behavior and when it does not has become increasingly blurred. Recently, the issue of whether police may use Global Positioning System (GPS) tracking devices to track individuals for prolonged periods of time without first securing a search warrant has crept its way into the limelight. The various circuits have arrived at different conclusions, and the question has now found its way onto the US Supreme Court's docket. After analyzing and weighing both Supreme Court case law and public policy considerations, this Note concludes …

Privacy Implications Of Smart Meters, Cheryl Dancey Balough

Chicago-Kent Law Review

Many people worry about the erosion of privacy in our society given developments in technology, but that loss of privacy may take a quantum leap as electric "smart meters" make it possible for strangers to know on a real-time basis what is occurring in our houses and apartments. Perhaps the greatest concern is that current laws and regulations do not fully protect us from this unprecedented threat to two of our most basic rights—to be left alone in our own homes and to control personal information. Utility companies across the country are replacing conventional electric meters with smart meters designed …

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renee Mcdonald Hutchins

Journal Articles

For more than two months beginning in late December of 2005, police officers in New York State continuously monitored the location and movements of Scott Weaver's van using a surreptitiously attached global positioning system ("GPS") device, known as a "Qball."' The reason Weaver was targeted for police surveillance has never been disclosed. 2 In addition, law enforcement made no attempt to justify the heightened scrutiny of Weaver by seeking the pre-authorization of a warrant from a neutral magistrate.3 Rather, for sixty-five days, the police subjected Weaver to intense surveillance without oversight, interruption, or explanation. 4 More than a year after …

Proportionality, Privacy, And Public Opinion: A Reply To Kerr And Swire, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In 2007, I published Privacy at Risk: The New Government Surveillance and the Fourth Amendment.' The immediate trigger for the book was the recent upsurge in government use of technology to monitor public and private behavior, and more particularly the tremendous increase in government surveillance after 9/11 using techniques such as data mining, phone and computer intercepts, and public camera systems. The primary analytical target of the book, however, was more general: Supreme Court case law that, read broadly, permits much of this technological surveillance to take place without impinging on any constitutional interests. In an effort to counteract this …

A Fourth Amendment For The Poor Alone: Subconstitutional Status And The Myth Of The Inviolate Home, Jordan C. Budd

Law Faculty Scholarship

For much of our nation’s history, the poor have faced pervasive discrimination in the exercise of fundamental rights. Nowhere has the impairment been more severe than in the area of privacy. This Article considers the enduring legacy of this tradition with respect to the Fourth Amendment right to domestic privacy. Far from a matter of receding historical interest, the diminution of the poor’s right to privacy has accelerated in recent years and now represents a powerful theme within the jurisprudence of poverty. Triggering this development has been a series of challenges to aggressive administrative practices adopted by localities in the …

Discipline In Schools After Safford Unified School District #1 V. Redding, Dennis D. Parker

NYLS Law Review

No abstract provided.

Substitution Effects: A Problematic Justification For The Third-Party Doctrine Of The Fourth Amendment, Blake Ellis Reid

Publications

In the past half-century, the Supreme Court has crafted a vein of jurisprudence virtually eliminating Fourth Amendment protection in information turned over to third parties - regardless of any subjective expectation of privacy or confidentiality in the information on the part of the revealer. This so-called “third-party” doctrine of the Fourth Amendment has become increasingly controversial in light of the growing societal reliance on the Internet in the United States, where nearly every transaction requires a user to turn information over to at least one third party: the Internet service provider (“ISP”).

Citing the scholarship that has criticized the third-party …

Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Faculty Scholarship

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists …

Islam's Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Articles & Chapters

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the FourthAmendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists of …

The Case For The Third-Party Doctrine, Orin S. Kerr

Michigan Law Review

This Article offers a defense of the Fourth Amendment's third party doctrine, the controversial rule that information loses Fourth Amendment protection when it is knowingly revealed to a third party. Fourth Amendment scholars have repeatedly attacked the rule on the ground that it is unpersuasive on its face and gives the government too much power This Article responds that critics have overlooked the benefits of the rule and have overstated its weaknesses. The third-party doctrine serves two critical functions. First, the doctrine ensures the technological neutrality of the Fourth Amendment. It corrects for the substitution effect of third parties that …

The Good And Bad News About Consent Searches In The Supreme Court, Tracey Maclin

UF Law Faculty Publications

This article is about the Supreme Court's consent search doctrine. Part I describes how the law of consent searches developed between the 1920s and 1973, when Schneckloth v. Bustamonte was decided, which is the Court's seminal consent search case. Part II of the article is a discussion of Bustamonte. In particular, this part highlights the spoken and unspoken premises that influenced the result in Bustamonte and outlines Bustamonte's continuing relevance for consent search cases today. Part III examines United States v. Drayton, a ruling authored by Justice Kennedy that explains why a cryptic passage in that ruling provides important clues …

Fourth Amendment Protection For Stored E-Mail, Patricia L. Bellia, Susan Freiwald

Journal Articles

The question of whether and how the Fourth Amendment regulates government access to stored e-mail remains open and pressing. A panel of the Sixth Circuit recently held in Warshak v. United States, 490 F.3d 455 (6th Cir. 2007), that users generally retain a reasonable expectation of privacy in the e-mails they store with their Internet Service Providers (ISPs), which implies that government agents must generally acquire a warrant before they may compel ISPs to disclose their users' stored e-mails. The Sixth Circuit, however, is reconsidering the case en banc. This Article examines the nature of stored e-mail surveillance and argues …

Government Data Mining And The Fourth Amendment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The government's ability to obtain and analyze recorded information about its citizens through the process known as data mining has expanded enormously over the past decade. Although the best-known government data mining operation (Total Information Awareness, more recently dubbed Terrorism Information Awareness) supposedly no longer exists, large-scale data mining by federal agencies devoted to enforcing criminal and counter-terrorism laws has continued unabated. This paper addresses three puzzles about data mining. First, when data mining is undertaken by the government, does it implicate the Fourth Amendment? Second, does the analysis change when data mining is undertaken by private entities which then …

The Good And Bad News About Consent Searches In The Supreme Court, Tracey Maclin

Faculty Scholarship

This article is about the Supreme Court's consent search doctrine. Part I describes how the law of consent searches developed between the 1920s and 1973, when Schneckloth v. Bustamonte was decided, which is the Court's seminal consent search case.

Part II of the article is a discussion of Bustamonte. In particular, this part highlights the spoken and unspoken premises that influenced the result in Bustamonte and outlines Bustamonte's continuing relevance for consent search cases today.

Part III examines United States v. Drayton, a ruling authored by Justice Kennedy that explains why a cryptic passage in that ruling provides important clues …

Garbage Pails And Puppy Dog Tails: Is That What Katz Is Made Of?, Aya Gruber

Publications

This Article takes the opportunity of the fortieth anniversary of Katz v. U.S. to assess whether the revolutionary case's potential to provide broad and flexible privacy protection to individuals has been realized. Answering this question in a circumspect way, the Article pinpoints the language in Katz that was its eventual undoing and demonstrates how the Katz test has been plagued by two principle problems that have often rendered it more harmful to than protective of privacy. The manipulation problem describes the tendency of conservative courts to define reasonable expectations of privacy as lower than the expectations society actually entertains. The …

The Liberal Assault On The Fourth Amendment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

As construed by the Supreme Court, the Fourth Amendment's reasonableness requirement regulates overt, non-regulatory government searches of homes, cars, and personal effects-and virtually nothing else. This essay is primarily about how we got to this point. It is fashionable to place much of the blame for today's law on the Warren Court's adoption of the malleable expectation of privacy concept as the core value protected by the Fourth Amendment. But this diagnosis fails to explain why even the more liberal justices have often gone along with many of the privacy-diminishing holdings of the Court. This essay argues that three other …

Standing Room Only: Why Fourth Amendment Exclusion And Standing Can No Longer Logically Coexist, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

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 …

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

Journal Articles

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 …

The Technology Of Surveillance: Will The Supreme Court's Expectations Ever Resemble Society's?, Stephen Henderson

Other Faculty Publications

For law students studying criminal procedure—or at least for those cramming for the exam—it becomes a mantra: government conduct only implicates the Fourth Amendment protection against unreasonable searches if it invades a “reasonable expectation of privacy.” This is not the contemporary definition of the word “search,” nor was it the definition at the time of the founding. But, via a well-intentioned concurrence by Justice Harlan in the famous 1967 case of Katz v. United States, it became the Court’s definition.This lack of fealty to the English language left some questions. For example, is determining whether someone has a “reasonable expectation …

There Is No Place Like Home: The Supreme Court's Refusal To Allow Searches Of The Home Based On Disputed Consent In Georgia V. Randolph, Kyle Evans

Oklahoma Law Review

No abstract provided.

Beyond The (Current) Fourth Amendment: Protecting Third-Party Information, Third Parties, And The Rest Of Us Too, Stephen E. Henderson

Faculty Articles

For at least thirty years the Supreme Court has adhered to its third-party doctrine in interpreting the Fourth Amendment, meaning that so far as a disclosing party is concerned, information in the hands of a third party receives no Fourth Amendment protection. The doctrine was controversial when adopted, has been the target of sustained criticism, and is the predominant reason that the Katz revolution has not been the revolution many hoped it would be. Some forty years after Katz the Court's search jurisprudence largely remains tied to property conceptions. As I have demonstrated elsewhere, however, the doctrine is not the …

Science Fiction And Shed Dna, D. H. Kaye

NULR Online

No abstract provided.

Reflections On Standing: Challenges To Searches And Seizures In A High Technology World, José F. Anderson

All Faculty Scholarship

Among the profound issues that surround constitutional criminal procedure is the obscure often overlooked issue of who has standing to challenge an illegal search, seizure or confession. Privacy interests are often overlooked because without a legal status that allows a person to complain in court, there is no way to challenge whether one is constitutionally protected from personal invasions. Standing is that procedural barrier often imposed to prevent a person in a case from objecting to improper police conduct because of his or her relationship of ownership, proximity, location, or interest in an item searched or a thing seized. Although …

Seeking Privacy: Examining A Role For The Fiduciary In Protecting Personal Information, Marcey L. Grigsby

NYLS Law Review

No abstract provided.

Transaction Surveillance By The Government, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This symposium article is the second of two on regulation of government efforts to obtain recorded information for criminal prosecutions. More specifically, it explores the scope and regulation of "transaction surveillance," which it defines as government attempts to access already existing records, either physically or through data banks, and government efforts to obtain, in real-time or otherwise, "catalogic data" (the identifying signals of a transaction, such as the address of an email recipient). Transaction surveillance is a potent way of discovering and making inferences about a person's activities, character and identity. Yet, despite a bewildering array of statutorily created authorization …