Prof Brandon Garrett reviews Orin Kerr’s “The Digital Fourth Amendment”
Today Professor Brandon Garrett joins us with his thoughtful review of Orin Kerr’s recent book “The Digital Fourth Amendment: Privacy and Policing in Our Online World.” Brandon is one Duke Law’s and, really, the nation’s most distinguished professors, so it’s a real treat to read his observations about a book that grapples with technological–and social–developments hardly imaginable when the Fourth Amendment was drafted.
Book Review of Orin Kerr’s “The Digital Fourth Amendment”
by Brandon L. Garrett
“Ways may someday be developed,” Justice Louis Brandeis observed in his influential dissenting opinion in Olmstead v. United States, in 1928, “by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.”
In the very opinion in which Justice Brandeis introduced a modern concept of privacy, the pioneering jurist and thinker on the topic of privacy rights, saw how technology and government evidence-collection might combine to threaten people’s rights in unprecedented ways. In the Olmstead case, it was the new technology of the telephone, which the government could surveil through secret wiretapping of telephone company lines.
Technology has continued, however, to create new privacy concerns, which in criminal cases implicated the Fourth Amendment, the subject of Professor Orin Kerr’s timely and important new book, “The Digital Fourth Amendment: Privacy and Policing in Our Online World.”
The Fourth Amendment provides, in a typically short passage that: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.”
The overall view that Kerr details in his book is this: “Our rights should not be at the mercy of changing technology,” as Kerr writes in the introduction to his book. Operationalizing rights that remain constant, as the world fundamentally changes, is Kerr’s overriding mission. It is a critical mission, today. It is no easy task, but Kerr’s book is a fascinating and easy read.
We are not the first generation to confront impacts of technology on privacy and criminal investigations. And in early chapters, Kerr describes how, as with wiretapping and the automobile in the 1920s, “computers today raise a major challenge for interpreting the Fourth Amendment.”
And the problem is that too much of our information is available to the government. Technology gives the government far greater access and power – not too little. Which then poses questions when turning back to the text of the Fourth Amendment. What is a “search” if it is digital? What is a “seizure” if it is digital? What is “reasonable,” if it is digital?
In answering those questions, Kerr’s goal is to restore “balance.” Based on what baseline? Kerr repeats here, his previously developed “equilibrium adjustment” theory, that the goal of existing Fourth Amendment law best described, already is and/or should be to restore the balance of rights and government interests, to the baseline that existed before technology changed the impact of the prior rules.
There are many challenges to reaching that type of balance, however defined. Kerr addresses the concern that the law may have already been out of balance, so that we risk mirroring out-of-kilter prior adaptations. Kerr also recognizes the challenges in analogizing as between novel new kinds of technological searches and traditional ones, at a time pre-dating modern policing of any sort.
Historical evidence and the making of historical analogies has become a deep preoccupation of the Supreme Court Justices. In recent rulings, in other areas, such as regarding the Second Amendment, the Justices have sometimes focused on specific historically-analogous practices—and not general principles.
Those specific-historical analogues can be hardest to identify in situations in which the technology is new, and where in the past, police practices were not written down or regulated in positive law. (And they are far from easy to draw in the Second Amendment context, as judges have struggled with the new analogy-based doctrine).
The Fourth Amendment text is broadly written, but in other areas, the Justices have adopted narrower approaches, to reliance on particular types of historical materials, often in the face of an inadequate or inadequately developed historical record. A broader principles-based approach, like Kerr’s, seems warranted.
To examine such questions, Kerry begins by looking to traditional, physical world analogies or equivalents. Are there always such good analogies, and are they needed if the focus is on principles? If it is like entering a “home,” then it is protected, but if it is like an “outside search,” then it is not? Kerr emphasizes that often, “information equivalents” will not be possible: and then what?
And Kerr describes how Riley v. California (2014) and Carpenter v. United States (2018) have provided greater digital privacy protections, regarding cell phone-related data, and why those opinions can be read as consistent with a theory broadly seeking to maintain Fourth Amendment balance.
The discussion does describe reasons why, in Kerr’s view, if data is shared with technology or other private companies by a person, then it is not protected if they turn it over to the government. Is that grounded in a balancing-approach to Fourth Amendment practices? The government gets a “windfall” from the new technology. And so do technology companies.
The discussion also largely focuses on local devices and networks: remember when what we cared about was just “computers” and “the internet”? Technology has moved to the cloud and to uses of artificial intelligence. The book does not focus on the concerns raised by AI, or the ways that AI platforms enable new types of searches and investigation, making use of people’s data in entirely new ways and at a newly expanded potential scale.
For example, what should we think about real-time scanning of our faces, which may be exposed and in the open and in public, so not a search? Kerr notes the question, and that it will likely come before the Supreme Court, and does not hazard an answer it.
But what if facial recognition is scanning people’s faces without any suspicion of any particular person, and then searching large databases, to potentially then identify particular individuals? What if it is a mixture of purchased data and government data that is being profiled? What if the government itself isn’t conducting the search, but rather a tech contractor that designed an autonomous system?
A deep and abiding optimism about the courts also suffices the book, with a focus on the Supreme Court, rather than the lower courts, state courts, or others, as the ultimate source for balanced Fourth Amendment protections.
The Court does not take Fourth Amendment cases, or any particular type of case, very often. But, someday soon, the Court’s “vacation” from the topic of digital searches will end, Kerr notes. And then what? And could our lawmakers do more to protect our Fourth Amendment privacy rights? And law enforcement? And state courts, which also abide by sometimes more-protective constitutional provisions?
Returning to Justice Brandeis: “The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. … Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.”
Justice Brandeis added: “Therefore, a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions.”
Our Fourth Amendment principles are being put to the test. And we need new tools, like those that Kerr explores, to safeguard those principles, and more importantly, our constitutional rights.
About the Author
Brandon L. Garrett is the David W. Ichel Distinguished Professor of Law and the founder and Director of the Wilson Center for Science and Justice at Duke Law. His most recent book, published earlier this year by Polity Books, is “Defending Due Process: Why Fairness Matters in a Polarized World.”
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