The Digital Fourth Amendment
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.
Kerr, Orin S., "The Digital Fourth Amendment" (2016). The John W. Hager Distinguished Lecture in Law. 11.