Virginia Journal of Law & Technology, Forthcoming
This Article seeks to solve the problem of technological change eroding privacy by developing a framework of bright line Fourth Amendment rules. As technologies such as digitalization and the internet become increasingly important in our daily lives, we come to expect less privacy in many areas of life. Since the Fourth Amendment protects citizens’ reasonable expectations of privacy against unreasonable government intrusions, the Fourth Amendment provides increasingly less protection as technology diminishes privacy expectations. Moreover, law enforcement agencies continually develop more sophisticated surveillance technology to spy on private conduct. However, courts are unable to keep up with these rapid technological developments because technology changes too quickly for judicially created rules, and judges often misunderstand the underlying technological issues. Similarly, technology changes too quickly even for statutory rules, and legislatures are lobbied by law enforcement agencies to weaken privacy protections. Although law enforcement agencies could regulate themselves to protect privacy, they have little incentive to do so. Therefore, the only way to adequately protect privacy against government surveillance is for courts to adopt bright line Fourth Amendment rules. Given the strictness of such rules, they should only be initially adopted for homes and human bodies, uncontroversial areas that have received longstanding, heightened legal protection. Bright line rules provide clear boundaries to law enforcement, thereby ensuring that current Fourth Amendment doctrine does not become increasingly empty. They also encourage police to adopt technologies that do not infringe on protected areas of privacy. Once courts have established the bright line rule framework, it can later be expanded to include new areas, such as email or automobiles, based on technological change and social use.
Date of Authorship for this Version
Levy, Joshua S., "Towards a Brighter Fourth Amendment: Privacy and Technological Change" (2011). New York University Law and Economics Working Papers. 279.