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The Lawfare Podcast
Lawfare Daily: Orin Kerr on the Digital Fourth Amendment
Jan 9, 2025
Orin Kerr, a Professor at Stanford Law School and an authority on the Fourth Amendment, shares insights from his new book, focusing on how digital tech has transformed privacy law. He delves into the Carpenter rule's implications for digital surveillance and the challenges it poses for law enforcement. The conversation also covers the historical evolution of privacy rights in the face of technology, emphasizing the balance between individual freedoms and governmental authority. Kerr introduces his Equilibrium-Adjustment Theory as a framework for navigating these complexities.
55:02
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Quick takeaways
- The Fourth Amendment's traditional physical space assumptions struggle to regulate modern digital evidence collection methods like GPS data and text messages.
- Orin Kerr's Equilibrium-Adjustment Theory illustrates how courts must recalibrate legal standards to balance privacy rights and law enforcement powers in the digital age.
Deep dives
The Evolution of Fourth Amendment Application
The Fourth Amendment, which prohibits unreasonable searches and seizures, faces significant challenges in the context of rapidly evolving digital technology. Historically, the amendment was based on physical spaces, regulating police authority regarding warrants and invasions. However, as technology progresses, the traditional interpretations of the Fourth Amendment may not adequately address new forms of evidence collection through digital means, such as cell phones and the internet. This shift raises questions about the appropriate legal standards for ensuring privacy in an increasingly digital world.
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