Berman & Asbel, LLP

Proposed Updated 4th Amendment for the Information Age

I frequently read Kashmir Hill's blog on Forbes, "The Not So Private Parts."  I took particularly notice of Ms. Hill's posting about U.S. 9th Circuit Court of Appeals Judge Alex Kozinski and his law clerk, Stephanie Grace, who wrote that the 4th Amendment, once the constitutional guarantor of protecting homes, papers, things and people secure from government search and seizure has become obsolete.   A line of U.S. Supreme Court decisions has held that the 4th Amendment only protects things and information regarding which people have a reasonable expectation of privacy.  Increasingly, information that is given over to others to hold such as online services is considered not expected to be private as would data on a computer physically located in one's home.

In a nutshell, Judge Kozinski and Ms. Grace concluded that American consumers have killed the expectation of privacy with use of store club cards, smart phones, and online shopping.  I contend that despite the advance of technology, human beings still have as much need for some measure of privacy today as they did in 1789 when the Bill of Rights was originally drafted.  If the courts continue to tie privacy to the concept of physical location of data, then perhaps this is an area where law has failed to keep up with technology. If we fail to correct this change in the balance of power between the individual and the government, do we put our individual liberty at risk?

Perhaps the American people need to consider updating the 4th Amendment.  To facilitate the discussion, here's a proposed updated version with additional language in bold text:

The right of the people to be secure in their persons, houses, papers, data, information and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place or entity to be searched, and the persons, information, data or things to be seized.

In an electronic age, we have changed the mode and manner of storing and using information has changed but that has not eliminated the need to protect private information from arbitrary scrutiny by the government. An updated 4th Amendment would not preclude completely obtaining information without a warrant but would enable a standard of expectation of privacy that is more in keeping with common sense in the modern context.  For example, if you post information on Facebook with your privacy setting to public, so anyone can see it, there's no expectation of privacy there.  However, if you purchase items from Amazon online, you do not expect anyone other than the merchant to know about it unless you specifically have authorized publication of that information.

This update to the 4th Amendment is not a detailed policy - constitutional provisions generally do not work that way but rather provide an outline for framing an important societal value and parameters in which courts and legislators will provide more detail.

I do not necessarily insist that the version offered here is necessarily the best idea but this is an issue that we as a society ought to be discussing.  Let the conversation go forward.

1 Comment

Or, "the people shall not subjected to investigation in any way, shape, or form, without a warrant that is sworn under oath, detailed in the extreme and with probable cause that leaves zero doubt in the mind of any sane adult. Any violation of this amendment shall not be defended by qualified immunity and shall result in vacation of the charges against the violated, and life imprisonment for the violator(s)."

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