The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution

Abstract

To one who values federalism, federal preemption of state law may significantly threaten the autonomy and core regulatory authority of The Supreme Court recently considered whether a1mmg an infrared thermal imaging device at a suspect's home can violate the Fourth Amendment. Kyllo v. United States announced a new and comprehensive rule: the government's warrantless use of senseenhancing technology that is "not in general use" violates the Fourth Amendment when it yields "details of the home that would previously have been unknowable without physical intrusion." Justice Scalia's majority opinion acknowledged that the Court's rule was not needed to resolve the case before it, which dealt only with a crude infrared camera. Justice Scalia justified the broad rule on the Court's need to "take the long view" and protect the public from the threat of other more nefarious government surveillance technologies - including technologies yet to be invented. As surprising as Kyllo's authorship may be, the opinion captures the prevailing zeitgeist about law, technology, and privacy. When technology threatens privacy, the thinking goes, the courts and the Constitution should offer the primary response. While Congress and state legislatures may have a limited role regulating government investigations involving new technologies, the real work must be done by judicial interpretations of the Fourth Amendment. The courts come first, legislatures a distant second. Justice Brandeis's famous dissent in Olmstead v. United States provides the guiding light. Brandeis urged in 1928 that to protect our liberties as technology advances, "every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." Seventy-five years later, modern commentators echo this approach with surprising uniformity. The view that the Fourth Amendment should be interpreted broadly in response to technological change has been embraced by leading theorists of law and technology such as Lawrence Lessig, leading constitutional law figures such as Laurence Tribe, and nearly everyone else who has written on the intersection of technology and criminal procedure. Because of its broad support among leading commentators, I will label this approach the popular view of the Fourth Amendment and new technologies.

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