The Fourth Amendment and Surveillance in a Digital World

Technology has transformed government surveillance and opened traditionally private information to official scrutiny. The current privacy-based approach to the Fourth Amendment is unable to cope with the changes. This Article offers a solution to the problems that technological surveillance techniques present. Starting with the introduction of the approach in Katz, the Article reviews the development of privacy-based approach. It then looks at three 21st century Supreme Court cases that grappled with applying the Katz test to advanced technological surveillance techniques: Kyllo, Quon, and Jones. These cases demonstrate the problems that the privacy-based approach creates and the need for an alternative. Rather than trying to repair the privacy-based approach’s short-comings, this Article recommends adopting a new approach—one that returns to the amendment’s text, interpreting “searches” to include all investigative techniques aimed at gathering information, thus subjecting all governmental surveillance to the amendment’s reasonableness mandate. The Fourth Amendment would have a broadened reach and its protections would no longer hinge on whether personal information might somehow be public, not private. After explaining how the new approach might function, the Article offers some tentative thoughts, as well as cautions, concerning the impact of a Fourth Amendment expansion on the presumption that to be reasonable, a search must be supported by a warrant