Tech Policy Podcast 395: The Digital Fourth Amendment — With Orin Kerr
Jan 23, 2025
Orin Kerr, a Stanford Law professor and author of "The Digital Fourth Amendment," dives deep into the intersection of digital privacy and the Fourth Amendment. He argues that original interpretations of the Fourth may not hold up in today’s tech-driven world. Kerr discusses whether criminals should simply avoid smartphones and critiques the practicality of the mosaic theory. The conversation also uncovers the complex balance between personal privacy and law enforcement needs, emphasizing a call for updated legal frameworks to protect digital rights.
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Fourth Amendment Adapting to Technology
- The Fourth Amendment, initially focused on physical intrusion like house searches, has adapted to technology.
- Katz v. United States shifted the focus to a reasonable expectation of privacy, encompassing modern equivalents of physical invasion.
Equilibrium Adjustment and the Fourth Amendment
- Technology creates an arms race between law enforcement and criminals.
- Courts adjust Fourth Amendment rules to prevent extreme imbalances in power, not just to keep up with technology.
Originalism and the Fourth Amendment
- Originalist judges adapt the Fourth Amendment to new technologies by focusing on its role.
- They aim to preserve the original privacy protections rather than strictly adhering to the text's limited scope.
