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Office of the Director of National Intelligence General Counsel Robert Litt has published a new essay in The Yale Law Journal that will likely be of interest to Lawfare readers. Entitled "The Fourth Amendment in the Information Age", it begins:
To badly mangle Marx, a specter is haunting Fourth Amendment law—the specter of technological change. In a number of recent cases, in a number of different contexts, courts have questioned whether existing Fourth Amendment doctrine, developed in an analog age, is able to deal effectively with digital technologies. Justice Sotomayor, for example, wrote in her concurrence in United States v. Jones, a case involving a GPS tracking device placed on a car, that “the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties . . . is ill suited to the digital age.” And in Riley v. California, the Chief Justice more colorfully rejected the government’s argument that a search of a cell phone was equivalent to a search of a wallet:
That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.
I intend to discuss the application of the Fourth Amendment in the information age, and I want to start with two important caveats.
First, I am not proposing a comprehensive theory of Fourth Amendment law. Rather, I want to offer some tentative observations that might be explored in shaping a productive response to the challenges that modern technology creates for existing legal doctrine. In particular, I would like to suggest that the concept of “reasonable expectation of privacy” as a kind of gatekeeper for Fourth Amendment analysis should be revisited.
Second, these thoughts are not informed by deep research into the intent of the Framers, or close analysis of case law or academic scholarship. Rather, they derive from almost forty years of experience in law enforcement and intelligence. But, despite Justice Oliver Wendell Holmes’s adage about the life of the law, I hope that they have some foundation in logic as well.
Read the full essay here on the YLJ.