Volokh Conspirator Orin Kerr has been hard at work trying to create a framework for the application of the 4th Amendment to the internet, one of the stickiest problems confronting criminal law in the past decade.  He has produced an upcoming article, Applying the Fourth Amendment to the Internet: A General Approach, and given the respect shown Orin, it is well worth our while to consider whether he’s got it right or out of his mind.  It may well be the difference between suppression and admission for our clients for a long time to come.

 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.

The parameters of Orin’s “technology neutrality” approach are somewhat hard to get one’s arms around.  If I understand him correctly, his point is that existing 4th Amendment doctrine, developed and applied to the brick and mortar world, should be applied with equal force to the digital world.  I gather this would be done by analogizing technological wonders to existing hardscape.

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: Berger v. New York, Katz v. United States, and 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.

Rather than start from scratch and develop a 4th Amendment jurisprudence designed for the novel issues that arise from digital reality, and I would also assume the accoutrements of technology such as border laptop searches, hard drive mirror imaging and the like, Orin proposes that we stick with the overarching Katz reasonableness paradigm and shove it into whatever hole fits best.

This scares me.  Not only has the Katz reasonableness test led to the road to perdition, proving time and again how the vague concept of objective reasonableness is so easily manipulated by rhetoric, with whoever can come up with an argument that suits the courts’ bias prevailing, but it has given us exceptions that have swallowed the rule whole, like the automobile exception.  Given how poorly judges adapt to technology, Judge Kozinski aside, and our incredibly poor experience with ignorant precedent guiding us to inappropriate and irrational application of law to developing technology, there is no end to the mischief this could cause.

I can appreciate Orin’s concern that judge’s familiarity with the existing law will make it easier for them to apply it to novel and developing technologies, but I’m unconvinced that “ease of use” should be the most important factor as a whole new area of 4th Amendment law comes into existence.  One day all the current judges will be gone, but we’ll still be stuck with 19th Century legal concepts applied to 21st Century technology.  Facilitating today’s judges hardly seems like the most critical issue over the long run.  Even these old dogs can learn a new trick if they have to.

But the bigger issue is whether analogizing old applications to entirely distinct situations is viable.  The problem is that there is rarely a good fit, with things like the file cabinet analogy showing it’s age in this comment to Orin’s post.   Granted, recreating the 4th Amendment on a sui generis basis would be difficult, confusing and likely to produce some wildly differing results.  It would certainly lack for clarity for a while, as different judges hash out their understanding of technology and try to find the most “reasonable” way to deal with it.  But at the end of the day, we might find ourselves with law that makes sense, rather than law that’s a close fit.

Orin’s approach has some strong institutional arguments in its favor.  What it does not have is the security of knowing that it’s correct, and honors the purpose of the right of citizens to be free from unreasonable searches and seizures.  Given how the law goes from rule to mangled and distorted exception, and how we now stare down the exceptions on a daily basis in our effort to breath some life into the 4th Amendment, I cannot believe that the best we can do is take a moribund right, apply it to the future, and live with the consequences.