The Fourth Amendment guarantees our right “to be secure in [our] persons, houses, papers, and effects, against unreasonable searches and seizures” U.S. Const. Amend. IV. Unfortunately, due to the Supreme Court’s narrowing of Fourth amendment protections, today police can reach into your life and violate your privacy without triggering the Fourth Amendment. The threshold for what qualifies as a ‘search’ is simply too high. The most draconian doctrine that undermines Fourth Amendment rights is the third party doctrine, which states that anytime you share anything with another actor, you no longer have a privacy expectation with that information or item, Smith v. Maryland, 442 U.S. 735 (1979). The third party doctrine is still good law, but has seen its limits tested in recent cases like Kyllo v. United States, 533 U.S. 27 (2001). Still, Fourth Amendment jurisprudence is littered with examples of the Court generally narrowing the definition of ‘search’ and therefore expanding law enforcement power.
Under current Fourth Amendment jurisprudence, police dogs can smell your luggage for drugs without a ‘search’ occurring. United States v. Place, 462 U.S. 707 (1983). Police can fly a helicopter above your property and look down upon it from the air without a ‘search’ occurring Florida v. Riley, 488 U.S. 445 (1989). Police can access your incoming and outgoing phone call list without a ‘search’ occurring Smith v. Maryland, 442 U.S. 735, (1979). Police can take your trash from the sidewalk (in a jurisdiction where it is mandatory for you to leave it on the curb), open it, and root around in it without ‘searching’ California v. Greenwood, 486 U.S. 35 (1988). A ‘search’ under the Fourth Amendment should include all of these actions because law enforcement is using investigatory tactics to examine and gather information.
This article proposes two potential doctrinal changes that would ameliorate these rights violations. First, elimination of the third party doctrine, which has no place in the modern world when nearly every piece of data is shared with third parties. Second, courts need to examine police action and intent when determining if law enforcement conducted a search under the Fourth Amendment. To this end, a search should be redefined as ‘when law enforcement gathers private information.’ Analyzing a state actor’s action is significantly more appropriate than forcing the victims of unconstitutional searches to justify their privacy expectation after the intrusion. The private information requirement stems from the text of the Fourth Amendment itself, which held papers in the highest regard of all potentially searched objects. In the modern era, what the founders were concerned with protecting – private information and thoughts – are no longer confined to papers or what is in your mind (which was protected by the Fifth Amendment). That is why the definition of a search must consider this aspect of information collected. These meaningful changes would reassert and secure our Fourth Amendment rights after years of degradation.
So why are all of these obviously investigative invasions of people’s persons, belongings, and properties not considered searches? Over the years, the Supreme Court has created a definition and series of tests for what qualifies as a “search” to police the police. These decisions have a decidedly narrow conception of what is impermissible law enforcement behavior. The court bases its definition of a search and therefore our right against unlawful search either (1) on whether there is a traditional property right or (2) under the reasonable expectation of privacy test from Katz v. United States, 389 U.S. 347 (1967), See also United States v. Jones, 565 U.S. 400 (2012). This Katz test is two-pronged: Has an individual exhibited an actual (subjective) expectation of privacy? Is the expectation one that society is prepared to recognize as reasonable (objective)? Katz at 360-1.
These tests simply ask the wrong question. By demanding a property right or expectation of privacy, the Court incorrectly focuses on victims of unlawful searches and society in general. The inquiry should center on law enforcement’s actions and intentions and the nature of the information collected. The burden of protecting our Fourth Amendment rights should not fall on the violated after the fact. It should fall on the violators not to violate.
At a minimum, the third party doctrine must be overruled. As technology continues to advance and pervade our lives, society’s conception of privacy will continue to shrink, and law enforcement capabilities will reach further into our most private information. Today, the expansion of technology has made key, intimate, and private pieces of information organized and available to law enforcement, even though they would previously have been completely private.
No one expects that the vast amount of information we share online with third party websites to be accessible to law enforcement. We share our locations, financial records, our online communications, and much more. This ‘sharing’ with third parties is hardly optional in the modern age; yet, no one expects that information to be freely available to the state. Under the existing logic of the third party doctrine, however, police might be able to collect all of these pieces of information without triggering the Fourth Amendment. Though the court has stopped short in some instances of fully extending the logic of this doctrine, its existence in the digital era gives a dangerous tool in future Courts’ and law enforcement arsenals to potentially apply it to all our private information.
Broadly, a court’s inquiry into whether a search occurred should turn on one question: ‘Did the police purposefully collect private information without a warrant?’ If an action would be understood as investigatory by a reasonable person and the information collected is private, that should constitute a ‘search.’ Then, the Fourth Amendment would require a warrant before the search occurs. Though a seismic change to Fourth Amendment jurisprudence, this reframing is necessary considering the tools already available to the police and the necessity of robustly protecting Fourth Amendment rights in a new era of technology. Law enforcement should absolutely be required to obtain a warrant before they dig through someone’s trash or access our email records through Alphabet.
In the digital era, requiring a warrant for searches of private information is a much more appropriate and robust protection of Fourth Amendment rights. Systemically, police have seen their tracking and information gathering capabilities greatly expand in the digital era. Even under this new definition, law enforcement could still do traditional investigative techniques like speak to individuals or inspect public spaces and information. They can also take advantage of their newfound public data troves from sources like social media and digitized public records. These already-available tools are more than enough to compensate police for expanding the definition of a search and would still allow for law enforcement to build probable cause to obtain a warrant.
Broadening the meaning of search would prevent police from committing invasions of our privacy without probable cause or under necessary exceptions like e.g., the exigency doctrine. It will encourage thorough police investigations to determine probable cause and introduce an important Ex-ante judicial check on law enforcement pre-searches. Overall it will secure our Fourth Amendment rights in the digital age without hindering law enforcement.
The Fourth Amendment is supposed to protect citizens from law enforcement gathering private information about them without meeting the requirements for a warrant. Requiring a warrant places a neutral actor in-between law enforcement and citizenry to protect our Fourth Amendment rights. The modern era and existing jurisprudence have created a world in which police can gather almost all necessary investigatory information without a warrant. As technology continues to advance, the problem of unjust intrusions into private information will only worsen. We must address this problem now through meaningful reforms.