Posted by Orin Kerr:
Applying the Fourth Amendment to the Internet, Part I -- Technology Neutrality:
http://volokh.com/archives/archive_2009_03_22-2009_03_28.shtml#1237931533
(This is the first of a short series of posts on my new forthcoming
article, [1]Applying the Fourth Amendment to the Internet: A General
Approach).
For the last several years, I've been pondering how the Fourth
Amendment should be applied to the Internet. The question is difficult
in part because to start off you need some sort of a theory as to what
the Fourth Amendment means. It's not enough to just follow the terms
of existing doctrine, as the doctrine itself is largely indeterminate:
What is a "reasonable expectation of privacy," after all? And what
makes a search "reasonable"? That doesn't take you very far without
some sort of theory about what the Fourth Amendment does.
Nor does high-level constitutional theory answer very much here. For
example, say you're an originalist. It's kind of hard if not
impossible to know how that pans out. First, the original public
meaning of terms like "unreasonable searches and seizures" remains
[2]hotly contested. Second, not only were there no professional police
officers at the framing, there was of course no Internet. And if
you're a serious originalist, you probably have to rethink [3]the
incorporation doctrine, too, which means that you may not even be
regulating most police officers any more. So that doesn't necessarily
take you very far, either.
So what to do? In my new paper, I start with an assumption I call
"technology neutrality." The idea here is that the Fourth Amendment
should apply to the Internet much like the Fourth Amendment applies to
the physical world. I therefore start with the role that the Fourth
Amendment plays in regulating traditional physical investigations, and
I look for ways that the Fourth Amendment should be applied to try to
replicate that role online given the very different facts of the
Internet. 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.
Incidentally, for those well-versed in Larry Lessig's work, my
approach ends up being something akin to [4]Lessig's idea of
constitutional "translation," although at a more specific level.
Whereas Lessig sees the Fourth Amendment as a general protector of
privacy, and so envisions the Fourth Amendment as sort of a roaming
tool for protecting privacy online, my idea is to look more
specifically at how the Fourth Amendment does and does not protect
privacy and to recreate both sides of that picture in the new space.
But why assume "technology neutrality"? To be clear, technology
neutrality is just an assumption in my article: I don't actually argue
for that position from first principles. If you have theoretical
commitments that rule out technology neutrality, then you're just not
going to get much out of the paper: It's not the paper for you.
At the same time, I think the assumption is a helpful one to make
for a good practical reason: It's what judges and Justices today think
the Fourth Amendment requires. That is, 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: [5]Berger v. New
York, [6]Katz v. United States, and [7]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.
Today, every Supreme Court Justice (and every judge I can think of)
adopts that basic view. The 1967 view has stuck. The Fourth Amendment
is now understood as a tool for requiring "reasonable" police
practices in the sense of sensible or desirable ones. Different judges
have a different sense of what that means, of course, but pretty much
everyone agrees that this is the goal. And implicit in that goal is
technology neutrality: If the Fourth Amendment is a general tool for
requiring reasonable police practices, then presumably it should
require reasonableness in equal degrees regardless of whether the case
happens to involve a physical investigation or an Internet
investigation.
So for all practical purposes, we live in a world in which the legal
culture and shared understandings of what the Fourth Amendment does
require some kind of technology neutrality. You might like it; you
might not. But it's the world we're in. What does that actually mean
for the Fourth Amendment as applied to the Internet? Stay tuned for
that my next post.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1348322
2. http://www.law.utk.edu/faculty/davies/4thamend.pdf
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1346453
4. http://www.lessig.org/content/articles/works/fidelity-transaction.pdf
5. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0041_ZS.html
6. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0389_0347_ZS.html
7. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0387_0294_ZS.html
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