Christopher Slobogin, The Future of the Fourth Amendment in a Technological Age

Comment by: Dorothy Glancy

PLSC 2011

Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1734755

Workshop draft abstract:

The Fourth Amendment is becoming increasingly irrelevant as technology expands police capacity to intrude.   Supreme Court jurisprudence defining “search” for Fourth Amendment purposes—the public exposure doctrine, the general public use doctrine, the contraband-specific doctrine and the assumption of risk doctrine—leaves a vast number of technologically-enhanced search techniques unregulated.  Special needs doctrine leaves many other technological searches, especially those of groups, essentially unregulated. Yet the damage to privacy and related interests caused by these “virtual searches” can be just as significant as the harm associated with physical searches.  Two reforms are proposed.  Where police target a particular individual, innuendo in Supreme Court decisions that “search” might eventually be defined as a layperson would and that the justification for searches should be proportionate to the degree of invasion can form the basis for a regulatory regime that provides meaningful privacy protection without handcuffing the police.  When, instead, government uses technology to conduct mass searches, political process theory—less deferential to law enforcement than special needs doctrine, but more deferential than strict scrutiny analysis—may provide the optimal method of cabining government power.