The 4th Amendment in the 21st Century- What is an "Unreasonable Search and Seizure" in the Digital Age?
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” For more than 50 years, courts have applied the Fourth Amendment to new technology. In the landmark case of Katz v. United States, 389 U.S. 347 (1967) (Harlan, J. concurring), the United States Supreme Court determined that the Fourth Amendment applies when someone has a “reasonable expectation of privacy.” The Court held that the police violated the Fourth Amendment when they attached a listening device to the outside of a public telephone booth to record telephone conversations secretly.
In 2012, in United States v. Jones, 565 U.S. 400 (2012), the Supreme Court held that installing a Global Positioning System (GPS) tracking device on a vehicle to monitor its movements constituted a search subject to the limitations of the Fourth Amendment. The opinion did not rely upon the principle of an “expectation of privacy,” stated in Katz, but instead held that the placement of the GPS device on the vehicle was a trespass, which constituted a search.
In 2014, the Supreme Court decided Riley v. California, 134 S. Ct. 2473 (2014), and held that the Fourth Amendment bars police from reviewing the contents of a cell phone that is in the possession of an individual who has been arrested, unless they first obtain a search warrant. The Court explained that “[m]odern cell phones are not just a technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”
Last year, in Carpenter v. United States, No. 16-402, 585 U.S. ____ (2018), the Supreme Court held that the Fourth Amendment requires a search warrant for the government to track the past locations of a cell phone through the records of a wireless service provider. The Court considered GPS technology, which allows a service provider to find and record the location of a cell phone, and observed that although advances in technology had “afforded law enforcement a powerful new tool to carry out its important responsibilities . . . this tool risks Government encroachment of the sort the Framers, after consulting the lessons of history, drafted the Fourth Amendment to prevent.”
The Supreme Court has not considered whether the Fourth Amendment applies to drones equipped with cameras and other surveillance devices, which may be operated by or on behalf of the government. However, it has applied the Fourth Amendment to other technologies used for surveillance, including thermal imaging, Kyllo v. United States, 533 U.S. 27 (2001), and aerial observation and photography from an airplane or helicopter. California v. Ciraolo, 476 U.S. 207 (1986); Florida v. Riley, 488 U.S. 445 (1989); Dow Chemical Co. v. United States, 476 U.S. 227 (1986).
An essay and video contest for high school students in the western United States and Pacific Islands. Contest rules, entry instructions and more information can be found at http://www.ca9.uscourts.gov/civicscontest.
Entries accepted beginning February 1, 2019. Deadline for entries is April 1, 2019. Sponsored by the U.S. Federal Courts for the Ninth Circuit.