When the Chief Judge of the 9th Circuit Court of Appeals says the Fourth Amendment is dead, you have to pay attention.  Judge Alex Kozinski, together with his law clerk, Stephanie Grace, have written a Requiem for the Fourth.

When did the Fourth Amendment die, you ask?

Recently, but it’s been sick for a while.

So why haven’t you heard about it?

Because you’re the murderer. We all are. Our weapon of choice? Most recently, the smartphone, which, with our collective blessing, allows law enforcement to monitor our real-time geographic location.

Connect the dots.  We know that smartphones can be used to track us, but damn, they are just too cool and shiny.

It started with the supermarket loyalty programs. They seemed innocuous enough — you just scribble down your name, number and address in exchange for a plastic card and a discount on Oreos. The problem, at least constitutionally speaking, is that the Fourth Amendment protects only what we reasonably expect to keep private. One facet of this rule, known as the third party doctrine, is that we don’t have reasonable expectations of privacy in things we’ve already revealed to other people or the public.

If there is any judge who can appreciate the problems with the third-party doctrine, it’s Alex Kozinski.  And yet, rather than see its status as a problem in need of fixing, he calls it the murder weapon with which we (but not him) killed the 4th. 

This argument feeds into  Orin Kerr’s tech neutral argument about the future of privacy. Orin has no issue with the idea that the bits we feed to wires and chips suddenly are available to law enforcement as if we handed them to an actual person with the realization that they might spill the beans.  No reason to treat the brave new world of technology any differently than we did a bootlegger with a fast car.

But Judge Kozinski’s essay seems intended to lay blame for the disease, when he was the surgeon who let the body politic die.  The disease is hardly incurable, and actually deals with only one facet of the Fourth, while others had been murdered by exception after exception for decades.  Who’s responsible for those deaths, judge?

The current construct presumes that each of us, as we go about our daily lives, has a firm and complete grasp of the most intricate aspects of technology, and holds us accountable by eliminating our personal privacy protection because of the way some ISP routes our emails and cell towers triangulate our smartphones.  

Dan Solove says this is because our Katz-based “reasonable expectation of privacy” is no longer viable, if it ever was, as a measure of 4th Amendment applicability.  He offers in its place Fourth Amendment Pragmatism, though to this day I have no idea what that means or how it would work.

What I do know is that few of us meant to give away our privacy in exchange for a discount on Oreos, and nowhere on the loyalty program coupon did it say that by getting a cheaper cookie, we consented to the feds reading our emails.  The underlying assumption in the court’s embrace of third-party doctrine with regard to technology is that people with shiny smartphones know (or should know) what we gave away for a touchscreen.  We don’t. We never gave it a thought.  And even if asked, we wouldn’t really have a clue.

Sure, some wiseacre techie type will explain to me how smart they are, but my rights aren’t contingent on the meandering thoughts of geeks.  And frankly, put ten geeks in a room and they will rip each others lungs out over every tetrabyte.  People who can’t name the three branches of government, however, are not to be held accountable for their inability to find gainful employment at Microsoft. 

People just don’t know.  And people just don’t care.



Is our future to hang by the thin thread of our being held to the most intimate knowledge of every tech advancement, every investigative mechanism to sneak a peak at every keystroke, because the courts have interpreted a doctrine that made sense in the physical world by seems inane in the digital world?

If yes, then we’re dead and Judge Kozinski is right, at least to the extent digitalis afflicts us.  But it doesn’t have to be this way. Not at all.  If Katz was interpreted to mean the reasonable expectation of privacy of normal people, where we live in a world where our emails were not read by some virtual gnome in a government boiler room and our whereabouts not constantly checks by cell tower bots, we could control the imposition of technology on our lives rather than be controlled by it.

So Judge Alex, better to give the 4th a good shake and wake it up before declaring it dead.  You’re a circuit judge, for crying out loud. You know the problem. Do something about it. The only reason the Constitution has become subservient to technology is because judges haven’t gotten off their butts to deal with it.

The People may be dumber than dirt, but we’re the people you’re here to protect. Earn your pay, meager though it may be. Fix the problem instead of burying it.