Technology and the 4th Amendment: Past, Present, and Future

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By Mark Wilson, Esq. on September 17, 2014 9:51 AM

Today is Constitution Day, and even though the Bill of Rights isn't technically part of the original Constitution, the two have become inseparable.

Earlier this week, the FindLaw blog team discussed our favorite amendments, and I mentioned that the Fourth was mine. Of course, since the Bill of Rights was passed in 1791, technological advances have changed how the Fourth Amendment has been interpreted and what the bounds of "reasonableness" are.

With that in mind, here's a look at the Fourth Amendment's past, and where it may be headed in the future:

Property Rights

It all started with Olmstead v. United States in 1928. In that case, the Supreme Court upheld federal wiretapping on the ground that Olmstead didn't have a property right in the wire the government tapped, which was located outside on the telephone pole. For the next 40 or so years, archaic notions of property rights were integral to understanding when a search was reasonable.

That all changed in Katz v. United States, where the Supreme Court effectively overruled Olmstead and said that expectations of privacy, not property rights, were how the amendment should be defined. This was partially a recognition that, more than ever, people were engaging third-party services when communicating. Tapping a phone booth would be perfectly fine in a property-based view of the amendment, but that didn't sit well with the Katz Court, which believed that "[o]ne who occupies [a phone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world." This wasn't black-letter law, but rather a gut feeling that, if it were to mean anything, the Fourth Amendment shouldn't be limited only to situations where a person had a property interest.

Into the Future!

We're now enlisting third parties to do our work for us at an unfathomable rate. We use phone companies to transmit our calls, Internet Service Providers to serve us websites, and cloud storage companies to back up our data. At least for these purposes, there are statutory protections in the form of the Electronic Communications Privacy Act, among others. But otherwise, there's no Fourth Amendment protections for data willingly surrendered to a third party.

At least the Supreme Court has considered whether that should be the case. Justice Sonia Sotomayor, concurring in United States v. Jones, pondered whether we should go back to the purpose of the amendment in the first place: "Awareness that the Government may be watching chills associational and expressive freedoms. And the Government's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse."

Note that word: assemble. In recent discussions over the NSA's surveillance of ordinary Americans, the NSA has insisted it's just examining "metadata" -- information about who called whom and for how long, without examining the contents of the communications. But even the NSA's former general counsel doesn't buy that: "Metadata absolutely tells you everything about somebody's life. If you have enough metadata you don't really need content. ... [It's] sort of embarrassing how predictable we are as human beings."

With computers able to aggregate data in a way that humans never could -- or if they could, it would be at great expense, both in terms of money, time, and labor -- assembling information on a person becomes as much an intrusion as when Crown officials barged into a colonist's home in 1770 under a general warrant or writ of assistance.

The Fourth Amendment's future will hinge on what humans can't do, what computers can do, and the degree to which we tolerate being observed by robots.

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