The Digital Fourth Amendment

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Fourth Amendment rules must be rethought for the facts of digital evidence collection. Traditional Fourth Amendment rules are naturally tailored to the facts of physical space. The rules focus on what eyes can see. If the public can see something, the Fourth Amendment does not regulate access to it. The rules also focus on physicality. Whether a search is invasive depends on how much space it is allowed to occupy. The resulting rules make intuitive sense for the facts of physical investigations. The rules reasonably balance the government’s interest in security with the public’s interest in privacy. Digital evidence changes the facts, however. New facts demand new law because rote application of the old rules leads to extreme results. Rules intended to achieve a balance in the physical world end up producing surprising outcomes when applied to the digital realm. Courts must develop new rules to restore and rebalance Fourth Amendment protections. And they have to do so comprehensively, in a range of different cases. The result should be a new body of new computer-specific rules crafted by the courts solely for computer searches.


Orin S. Kerr is the Fred C. Stevenson Research Professor at the George Washington University Law School. He is a nationally recognized scholar of criminal procedure and computer crime law. Since he joined the GW Law faculty in 2001, his publications have been cited in over 2,000 articles and more than 200 judicial opinions.

Professor Kerr is a former trial attorney in the Computer Crime and Intellectual Property Section at the US Department of Justice, as well as a Special Assistant US Attorney in the Eastern District of Virginia. He clerked for Judge Leonard I. Garth of the US Court of Appeals for the Third Circuit and Justice Anthony M. Kennedy of the United States Supreme Court.

Professor Kerr has argued cases in the United States Supreme Court and three federal circuits. He has testified six times before Congressional committees.

In 2013, Chief Justice Roberts appointed Professor Kerr to serve on the Advisory Committee for the Federal Rules of Criminal Procedure. Chief Justice Roberts appointed Professor Kerr again in 2015 to serve on the Judicial Conference’s committee to review the Criminal Justice Act.

Professor Kerr has been a visiting professor at the University of Chicago and the University of Pennsylvania. In addition to writing more than 50 articles, he has authored and co-authored popular casebooks and co-authored the leading criminal procedure treatise. He also posts regularly at The Washington Post’s legal blog, The Volokh Conspiracy.

The GW Law Class of 2009 awarded Professor Kerr the law school’s teaching award. Before attending law school, he earned undergraduate and graduate degrees in mechanical engineering.