The Professor vs. the Practitioner on the Fourth Amendment

George Washington University Law School professor Orin Kerr, who is probably most renowned for his contributions to the Volokh Conspiracy, is publishing a paper in the upcoming Stanford Law Review titled “Applying the Fourth Amendment to the Internet: A General Approach”. The article’s general conceit appears to be that the Fourth Amendment should apply to the internet in the same way that it applies to the “physical world”:

Thus, the goal is "technology neutrality": Ideally, The Fourth Amendment should play the same role regardless of whether a criminal investigation occurs via an investigation in the physical world or whether it occurs via an investigation over the Internet.

Over at Simple Justice, Scott Greenfield asks whether this is the right approach, and concludes that it is not:

 

Given how the law goes from rule to mangled and distorted exception, and how we now stare down the exceptions on a daily basis in our effort to breath some life into the 4th Amendment, I cannot believe that the best we can do is take a moribund right, apply it to the future, and live with the consequences.

The professor’s technology neutral paradigm makes certain assumptions about how the Fourth Amendment works in the non-digital world. Greenfield, of course, has his own assumptions about that. But his are from the practitioner’s point of view. As a member of the non-academia practical blawgosphere, he’s been scarred by the brutal reality of what the 4th means to actual people, you know, the kind that have been searched, seized, arrested and indicted.

Here’s a snippet from Kerr:

[T]the assumption of technology neutrality captures the general understanding among judges and Justices about how the Fourth Amendment is supposed to be interpreted.

This understanding follows a trio of cases in 1967: Berger v. New York, Katz v. United States, and Warden v. Hayden.

In all three cases, the Supreme Court had to choose at a conceptual level between the Fourth Amendment as a specific set of protections grounded in history and the Fourth Amendment as a general tool to make that make sure the police don't have too much power.

In all three cases, the general view won out.

Kerr sees the 4th Amendment as a protection against police power. I see that he snuck in some experience at the Department of Justice either between or during clerkships for federal judges, including Supreme Court Justice Kennedy, before going off to teach, but nowhere is there experience from my side of the fence: the side where I try to use “unreasonable search and seizure” to the benefit of my client.

Greenfield, on the other hand, let this slip:

[Kerr’s] point is that existing 4th Amendment doctrine, developed and applied to the brick and mortar world, should be applied with equal force to the digital world.

Instinctively I felt that this sentence showed the two had different understandings of how the Fourth Amendment actually worked, but it took me a few moments to enunciate it. (Maybe more than a few; unlike Scott, I can’t just start typing non stop until the last period and then hit “publish”.)

Greenfield talks about the 4A being “applied with equal force to the digital world”. What’s the analogy? The same way it applies with force to your car, your pants pocket, your home. He’s talking about it being applied against the defendant. Kerr thinks it theoretically applies against the police.

They’re both right, in a way. If you read caselaw, and law review articles, and immerse yourself in the Federalist Papers, and try to divine the original understanding, then you’re likely to see the Fourth Amendment as restricting the State’s power. Hell, there’s a reason it’s called the Bill of Rights. It’s the rights of the people that are being protected from intrusion by their Government.

But try taking that view into an actual courtroom sometime. It’s intellectually honest to do so, but the wrong results keep happening. Again and again.

When you riddle the “general understanding about how the Fourth Amendment is supposed to be interpreted” with enough “reasonableness” loopholes and “good faith” exceptions then the practical result is that you stand the rule on its head.

Bottom line? Scott knows that current search and seizure law is used, for all practical purposes, against the accused and that if we simply extend the “physical world” Fourth Amendment to the “cyber world” of the internet, the same will be true there as well.

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Comments (4) Read through and enter the discussion with the form at the end
shg - March 29, 2009 5:18 AM

Very interesting take on the issue. You are, of course, correct in your assessment of my view, as a rule that started as a shield that theoretically protects us from the police has ultimately been turned into a sword against citizens, to find excuse after excuse to permit warrantless searches and seizures under almost any circumstance.

But I'm still struggling (with Orin) in my attempt to explain why I fear his analogy approach based on the use of rhetoric. I fear that both sides will posit their analogies from the real world to the cyber world, but that the government will seize (pun intended) the advantage because of the existing favor that courts show the law enforcement in allowing searches. I fear that once the analogy is adopted, then it becomes part of the permanent legal landscape and we will be saddled forever with some half-baked analogy misapplied to a technology that some judge barely comprehends.

In other words, the judge will find more comfort in the analogy than in an understanding of the actual application to the tech, take the easy route of adopting the government's analogy, and the future trend of 4th Amendment law will simply follow that analogy forever because it's what judges tend to do. Once we're on a particular road with regard to a particular type of technology, the law tends to stay where it is and resists change, leaving us with the same bad exceptions, misapplied, forever.

So help me out on this one. Does this make sense to you?

Jamie - March 29, 2009 11:18 AM

It makes sense, but I think there are two different issues going on here.

One: would it make sense/is it the right approach to take brick and mortar fourth amendment law and apply it to the cyber world? I think the answer from a theoretical perspective is yes.

I see no reason the “protections” of the fourth amendment shouldn’t apply “the same way” (as much as possible, that is) to the cyber world.

Two: does the current state of the law re: the 4th Amendment, as applied to the brick and mortal world… um, suck? YES. It’s all wrong. 4A isn’t quite literally meaningless (yet) but it keeps going in that direction. Therefore, if we apply this useless idea – the 4A applied today in the real world – to the cyber world, will that be all wrong too? YES.

I think you’re hoping that a new fresh look will bring better results – “better” being defined as “more in the direction of protecting the citizenry from unreasonable searches”.

So while I don’t mind the theoretical notion that 4A should apply equally in the real and cyber worlds, I do mind what that will mean when it comes to the Government being able to spy on my internet activity.

I think you and I are basically saying the same thing (and I tried to make that clear in my post. Clarity is not always the hallmark of my writing; even if I do take my time with it).

In the end, it’s the same crappy judges making decisions about the real world 4A that will make decisions about the internet 4A, so I don’t think we have much reason to be hopeful, no matter what framework they adopt.


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