The Race for Privacy: Technological Evolution Outpacing Judicial Interpretations of the Fourth Amendment: Playpen, the Dark Web, and Governmental Hacking

Despite complying with the new amendments to Federal Rule of Criminal Procedure 41, the Federal Bureau of Investigation\u27s (FBI) broad authorization to remotely access computers at anytime and anywhere within the United States is at odds with the reasonableness and particularity requirements of the Fourth Amendment. The exponential growth of technology has made life in the twenty-first century something our ancestors would envy, but the idea of allowing the government to perform unknown and undetected searches across the United States, especially in the hidden world of cyberspace, would have our founding fathers turning in their graves. Recognition is owed to the creators of the Constitution-and the Fourth Amendment specifically-for drafting a document that is still living and breathing, because doing so required tremendous vision. Free of British control and in an attempt to eliminate the immediate evils facing our infant country, the drafters of the Bill of Rights sought to prevent history from repeating itself by ratifying ten amendments to the United States Constitution. Their ability to foresee the unforeseeable is unparalleled; however, here in the digital age, the evolution of technology is outpacing the courts\u27 ability to interpret the Fourth Amendment in a manner that can reconcile governmental expedience and efficiency with individual privacy. This Note will explore the government\u27s use of network investigative techniques to hack unknown computers across the nation, as well as discuss how district courts disagree whether the hacking, albeit based on a warrant, runs afoul of the Fourth Amendment and former Federal Rule of Criminal Procedure 41. For the courts that have found no Fourth Amendment conflict-whether they found that no search and seizure occurred or that an exception applied their decisions do not comport with existing case law and risk expanding the scope of governmental searches to unimaginable proportions