Orin Kerr announces that his latest law review article, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010), is now online. This is the abstract.
This Article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.
My eyes burn as they absorb each word. Oh, the horror.
As courts, invariably reaching to grasp a way to deal with the intersection of technology and the Fourth Amendment, look to a credible source for guidance, Orin has emerged as one of the foremost thinkers. His works are regularly cited, and serve to provide a foundation for consideration of the constitutionality of search and seizure law as applied to the digital world. He’s a player.
It’s been clear for some time that Orin’s “net neutrality” approach, the application of existing “brick and mortar” Fourth Amendment precedent to evolving technologies and the digital world by analogy meant that we are doomed. Same black letter law. Same 17 million exceptions to cover every search. Same judges using the “file cabinet” analogy to explain why suppression is denied.
Don’t believe me? Then do what every cautious lawyer does on Sunday night. Watch the Celebrity Apprentice, Rod Blagojevich edition. He’s turning a laptop computer upside down, looking for a pencil perhaps. Granted, Blago was a governor, not a judge, but neither post has a test for computer literacy. Do you really think judges are inherently more savvy than Blago.
Ultimately, the technology neutral approach leaves it up to the only person in the room who can’t distinguish a text message from twitter to decide which inapplicable analogy strikes him as most appealing. At least when we went from Conestoga to Packards, you could see that one had chrome and the other didn’t.
Since Orin first floated his tech neutral approach, I’ve tried to persuade him that it was the wrong way to go. I’ve failed. Now that his latest law review article is out there for all to see, it’s too late to undo the damage that Orin Kerr has done to the future of the Fourth Amendment.
There is, however, one saving grace. No one who would use his misbegotten theory to justify suppression can find it, because they don’t know how to turn on the computer, and even if they did, would never be capable of formulating a viable Google search. Now, if only we can rid them of their law clerks, there may still be hope.