The digital Fourth Amendment : privacy and policing in our online world / Orin Kerr.

Format:

Book

Author/Creator:

Kerr, Orin S., author.

Series:

Oxford scholarship online.

Oxford scholarship online

Language:

English

Subjects (All):

United States. Constitution--4th Amendment.

United States.

Searches and seizures--United States.

Searches and seizures.

Electronic surveillance--Law and legislation--United States.

Electronic surveillance.

Exclusionary rule (Evidence)--United States.

Exclusionary rule (Evidence).

Privacy, Right of--United States.

Privacy, Right of.

Physical Description:

1 online resource (259 pages)

Edition:

1st ed.

Place of Publication:

New York, NY : Oxford University Press, [2025]

Summary:

When can the government read your email or monitor your web surfing? When can the police search your phone or copy your computer files? In the United States, the answers come from the Fourth Amendment to the Constitution and its ban on 'unreasonable searches and seizures.' 'The Digital Fourth Amendment' takes the reader inside the legal world of how courts are interpreting the Fourth Amendment in the digital age. Computers, smartphones, and the Internet have transformed criminal investigations, and even a routine crime is likely to lead to digital evidence. But courts are struggling to apply old Fourth Amendment concepts to the new digital world. Mechanically applying old rules from physical investigations doesn't make sense, as it often leads to dramatic expansions of government power just based on coincidences of computer design.

Contents:

Cover

Half Title

Title Page

Copyright Page

Dedication

Contents

Introduction

Part I Foundations

1 The Physical Fourth Amendment

Modern Policing and the Fourth Amendment

The Meaning of Searches

The Meaning of Seizures

The Meaning of "Unreasonable"

The Physical Rules of Fourth Amendment Law

2 Digital Evidence

Computers Are Everywhere

Digital Machines Keep Receipts

The Massive Storage Space of Today's Computers

The Role of Encryption

Introducing the Field of Computer Forensics

Where Evidence Is Found

Overview of a Digital Evidence Investigation

When Physical Rules Meet Digital Facts

3 Equilibrium-Adjustment

The Technological Contingency of Search-and-Seizure Law

The Theory of Equilibrium-Adjustment

The Balance of Fourth Amendment Law

But What if the Law Was Always Out of Balance?

A Standard Practice

The Pluralist and Originalist Case for Equilibrium-Adjustment

4 The Digital Fourth Amendment

Equilibrium-Adjustment in Carpenter

What Should the Digital Fourth Amendment Preserve?

The Timing of Equilibrium-Adjustment

Seeing the Digital Fourth Amendment

Part II Local Devices

5 Searches and Seizures

Searches and the Container Analogy

The Unit of Computer Searches

Rights in Images

Copying as a Seizure of Data

Summing Up-and a Postscript on Megahed

6 Warrants for Digital Evidence

Allowing Off-Site Seizures

Where and How to Search During the Electronic Search Stage

The Problem of Nonresponsive Data

Imposing a Use Restriction on Nonresponsive Data

Ending the Plain View Exception for Computer Searches-Sort Of

What Counts as "Use"?

The Oregon Experience with Use Restrictions

The Particularity of Warrants for Digital Evidence

The Ticking Time Bomb Problem

7 Border Searches.

Introducing the Border Search Exception

Current Computer Border Search Practices

The Lower Courts Divide on Border Searches of Computers

Eliminating the Border Exception for Digital Searches

Applying the Border Search Rationales to Digital Searches

Judge Rakoff Adopts a Warrant Requirement in United States v. Smith

A Different Answer for Noncitizens?

Why Rights for Noncitizens Can't Be Settled Yet

Part III Networks

8 Enter the Internet

Translating Between Network Information and Physical Space

Why Contents Should Ordinarily Be Protected-and Noncontent Metadata Ordinarily Unprotected

Postal Mail and Telephone Precedents Already Match the Theory

Lower Courts So Far Adopt the Content/Metadata Distinction for the Internet

The Misunderstood "Third-Party Doctrine"

Looking Beyond the Content/Metadata Distinction

9 The Carpenter Adjustment

The Mystery of Carpenter

An Equilibrium-Adjustment Understanding of Carpenter

Step 1: The New Records of the Digital Age

Step 2: The Records Must Tend to Reveal "The Privacies of Life"

Step 3: The Records Must Be Available Without Meaningful Voluntary Choice

Collecting Login IP Addresses

Monitoring Web Surfing

Obtaining Ride-Sharing Records

Geofencing

Reverse-Keyword Searches

10 Surveillance Big and Small

The Unanswerable Questions of the Mosaic Theory

The Challenge of Identifying Privacy Invasions

The Massachusetts Experiment

The Source Rule

AI and the Law of Downstream Analysis

11 Buying Data

What We Know About Governments Buying Data

Does Buying Private Data Trigger the Fourth Amendment?

Is Equilibrium-Adjustment Needed?

Don't Adjust the Law of Buying Data-At Least Yet

Digital Rights Versus Physical Rights

Is Buying Data a Fourth Amendment Question?

Epilogue

Acknowledgments

Appendix.

Chapter 2: Digital Evidence

Chapter 3: Equilibrium-Adjustment

Chapter 5: Searches and Seizures

Chapter 6: Warrants for Digital Evidence

Chapter 8: Enter the Internet

Chapter 10: Surveillance Big and Small

Chapter 11: Buying Data

Notes

Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

Chapter 9

Chapter 10

Chapter 11

Index.

Notes:

Includes bibliographical references and index.

Description based on online resource and publisher information; title from PDF title page (viewed on October 9, 2024).

ISBN:

0-19-062710-7

0-19-062708-5

OCLC:

1474240496