THE ETERNALLY YOUNG FOURTH AMENDMENT COMMON LAW
George C. Thomas III
While it is generally true that Fourth Amendment doctrine has not charted a clear path, the Court has a pretty good excuse. There is nothing in the first clause of the Fourth Amendment to guide them. This introduction to Rutgers Law Review’s Symposium Issue prefaces two speeches and two articles by briefly describing the history behind the drafting of the Fourth Amendment, and by noting that, in light of the ever more invasive and ubiquitous reach of technology, the meaning of “unreasonable searches and seizures” must be constructed as an evolving common law.
SYMPOSIUM KEYNOTE ADDRESS
Technological advances are occurring rapidly: ubiquitous surveillance by private actors like Google and Facebook is very much a reality, and police departments increasingly use drone technologies to track suspects around the clock. How would Justice Brandeis have viewed warrantless, ubiquitous electronic surveillance and its effect privacy? How should the current Supreme Court Justices consider the idea of “the right to be let alone” in light of new technologies? These remarks attempt to answer these questions by tracking the Court’s recent Fourth Amendment jurisprudence.
Technology is becoming available which can enforce judicial rules for government data collection, data access, data analysis, data sharing, and the duration of availability of acquired data. Even where the government has collected information without the use of individualized judicial warrant, robust judicial oversight is available, through the use of technology, to cover who the information is shared with, who gets to access it, and how much analysis should be done on it. This discussion offers good news about new technology: with properly deployed and used technology, there is a much better ability to track everything the government is doing with data, including whether particular actions cross a line requiring a warrant or other Fourth Amendment protections.
Police officers lawfully arrest a suspect, search him, and seize his cell phone. Sometime later, without first getting a search warrant, an officer answers an incoming call, reads an incoming text, or examines the phone’s memory, call log, prior text messages, photographs, or internet access records. As a result, the police acquire information that leads to additional evidence concerning the arrest crime, or a totally different and unrelated crime. Prior to trial, the defendant moves to suppress the evidence. The prosecutor argues that the officer’s action was justified by exigent circumstances, constituted a lawful search incident to the arrest, or both. This Article examines the exigent circumstances doctrine and the search incident to arrest doctrine and how they apply to cell phone searches. The Article also proposes an approach that respects both the purposes of these doctrines and the privacy of the cell phone’s owner.
PASS PARALLEL PRIVACY STANDARDS OR PRIVACY PERISHES
Anne T. McKenna
Private industry tracks our physical location, online activities, preferences, and financial status. In the process of this tracking, private industry collects, stores, and sells an astonishing amount of personal data. Nothing stops private industry from doing this. And Edward Snowden’s NSA surveillance revelations and publication of secret FISA Court Orders demonstrates that private industry’s vast databases are open to government inspection. This Article argues that technological advances have turned our traditional privacy analysis on end. Applying the traditional reasonable expectation of privacy analysis and the third party doctrine to advanced technologies and Internet-based activity requires courts to engage in absurd legal acrobatics to preserve any sense of privacy. The Article offers a legislative solution to the problem of invasive data gathering and tracking by private industry.