I Have Failed The Fourth

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 ApprenticeRod 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.

17 thoughts on “I Have Failed The Fourth

  1. Windypundit

    I know a lot about computer technology, and there was a time when I thought I had a pretty good layman’s understanding of the Fourth Amendment. But right now, Yahoo and the feds are battling it out over the feds’ claim that they don’t need no stinkin’ warrant to get copies of people’s email, and for some reason it all depends on how old the mail is and whether it has been opened by the user and I don’t understand any of it. The issues seem unrelated to anything real or meaningful. You say Kerr’s approach is a horror, but it sounds more principled than whatever standard they’re currently using.

  2. SHG

    The problem is that it IS Kerr’s approach, albeit not with what Orin would have as the correct result.

  3. Orin Kerr


    It seems to me that you see the choice as being between (a) your personal fantasy of what the Fourth Amendment should be or (b) a virtual version of what the Fourth Amendment is in the physical world. You then lament that if the choice is (b), because you don’t like the Fourth Amendment we have now, and if we accept that Fourth Amendment we have now then we will never have the Scott Greenfield fantasy come true. But why are those the two choices?

    (Also, to echo Windypundit, I’m not sure why you think I believe the Stored Communications Act is a technology neutral statute.)

  4. SHG

    And what’s wrong with my wanting my personal fantasy of the Fourth Amendment?

    We’ve been through this before. The state of the Fourth is horrific, with a general rule that is observed only as lip service prefacing a million exceptions.  My personal fantasy is to return to the rule.  My personal fantasy is to not perpetuate an exception for everything.  My personal fantasy is to not have a ibunch of judges who don’t really grasp the digital world making decisions by analogy.  My personal fantasy is to not have constitutional rights determined by which side can muster the cuter analogy. 

    My personal fantasy is to start with the rule, that warrantless searches are unconstitutional, develop Fourth Amendment jurisprudence anew for the digital world, from the position of protecting the expectation of privacy and enforcing it, without the million exceptions from horse and buggy days, or cute analogies to file cabinets, or result oriented application of rubrics that ignore the rationale.  The baggage developed over the past 100 years has choked the Fourth to death. My personal fantasy is to see it live again.

    It’s not a bad fantasy.

  5. Orin Kerr


    Can you elaborate on precisely when this world existed, to which you would return? Most of the exceptions known today date back to either the common law or the 1920s, and at the time there either was no exclusionary rule at all (before 1914) or it only applied in federal court not state court (before 1961). Is your dream to return to the days before the exclusionary rule? What historical period do you have in mind when this world existed, in your view?

  6. SHG

    I can’t, since I never said it did.  Nice try, though.

    But since we now know that there is an exclusionary rule in order to vindicate the right set forth in the Fourth Amendment, and that it applies to the states as well as feds, must its application to the digital come with every piece of bagage that’s been heaped on it to maintain the status quo of the exceptions swallowing the rule?

    My dream is to have a viable Fourth as we enter a new phase of its application, rather than have courts apply exceptions created to permit searching the cars of bootleggers.

  7. Orin Kerr


    Sorry I misunderstood: You said that you wanted to “return to the rule” so the Fourth Amendment can “live again,” which I understood to mean that you thought there was a time in the past when the rule existed and the Fourth Amendment lived. But now I understand that you want the Fourth Amendment to live for the very first time.

  8. SHG

    My “return to the rule” refers to the boilerplate, that “the rule is warrantless searches are per se unreassonable.” That’s the sentence the precedes the one applying the exception used by the court to deny suppression.  Sorry for the confusion.

  9. Orin Kerr

    Just so I understand, Scott, you want to return to one part of a sentence in Fourth Amendment decisions, without the pesky remainder of the sentence? I see. 😉

  10. SHG

    That’s exactly what I want to do.  I want the courts to start over (but including Weeks/Mapp) based on the black letter rule without the exceptions.  Why would I possibly want otherwise?  No doubt new exceptions will sprout up out of nowhere, but at least there’s a chance that they will be properly applicable rather than by analogy based on antiquated reasoning, rote application of the rubric or ignorance of the technology.

    Email isn’t the Pony Express.  Why would we want to take the law of the latter and burden the former?  It’s all screwed up now, and we’ve got a chance to do it over and get it right.  We have conceptual basis to rid ourselves of unworkable precedent.  Let’s make the Fourth Amendment viable again.  Why wouldn’t you want that as well?

  11. Orin Kerr


    I think existing Fourth Amendment law is actually pretty sensible, on the whole. Sure, it has some problems, and if I were king of the world, I suppose I would make some changes. But life is short, and perfection is impossible in any real-world system (especially a real-world system run by the government). So unlike you, I don’t have any wish to burn down the edifice and start anew.

  12. SHG

    That may well be the fundamental difference in our views. I think the state of Fourth Amendment law is a disaster, and I wish to burn it down, blow it up, (insert metaphor of choice), and start with a clean slate when it comes to technology and the digital world.

  13. Jay Thompson

    I fail to see were you assumed an expectation of privacy. It seems to me that you assumed some type of right of privacy because of password protection on a public domain. The analogies may seem ancient because of the examples they use, but that does not necessarily mean that the thought process are archaic, the justification for the rationale is solid even if I do not necessarily agree with it. I can not justify suing a hacker for defamation of character for hacking my email then sending out porn mail from my account nor can I make concrete case for the right to privacy on the internet. The limits of law is all in interpretation not in the exceptions to the rule because there is always an exception to the exception if the argument is strong enough. We do not need discard the exceptions but rather learn how to use them. After all if you do not learn from the history you are doomed to repeat it.

  14. Curt Sampson

    As background for this comment: I am, among other things, a network administrator and security consultant, and have been so for about a decade and a half. I understand Internet protocols intimately from top to bottom.

    Jay, you head off in the wrong direction when you use phrases as simple as “on the Internet” or “password protected.” Anybody familiar enough with Internet technology to be able to do something similar to wiretapping or trap and trace knows that being “on” the Internet is a shorthand that has such a broad range of meanings that, for the purposes for which you appear to be trying to use it, it’s a useless phrase. The way the Internet works is just so foreign and incomprehensible to most people (including most lawmakers, I should add) that trying to apply metaphors from completely different systems can only lead to ruin.

    Consider a simple example: viewing a copy of a web page. (You can never view the original, only a copy.) I could correctly argue that, by viewing that one web page, you have not only made several copies yourself, but you’ve also caused to be made dozens of copies that you gave to other people. That’s several dozen clear violations of current copyright law, although through misunderstanding and for convenience in most legal arenas, we’d pretend that that didn’t happen.

    If we start looking at e-mail, we run into a host of similar issues, the most amusing to me (if it weren’t so sad) being the confusion over when an e-mail might be “in transit” and when it’s seen “final delivery.” I could show you two indistinguishable on-disk files and you wouldn’t be able to tell which is the “in-transit” version and which is the “delivered” version, if either even counts as either. Your ISP holding a message that you’ve not downloaded is an area that could be quite properly argued either way, if you’re going to try and drag in such a relatively inapplicable concept at all.

    Well, I could go on, but the long and short of it is that many of the definitions currently being applied to Internet communications are, from a technical point of view, clearly convenient interpretations that some particular party has come up with because it’s of advantage to them.

  15. Ernie Menard

    I’d guess the world as it existed the moment the fourth amendment was ratified. Do you think the ratifiers walked out of the room winking and nodding that they’d just paid lip service to the concept that the government shouldn’t effect searches of people or their property without a warrant? An exclusionary rule is implicit in the amendmemt and any argument against this would be, at its very best, specious. It is not relevant that the right to be protected from illegal searches and seizures wasn’t recognized by the courts for a century afterwards.

    Were there any lawyers in that 100 years that appealewd based on a violation of the fourth amendment? I don’t know but I’d guess there might have been.

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