Orin S. Kerr

The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution

This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment. Second, legislative privacy protections are significantly stronger than most commentators appreciate. The case of wiretapping is instructive. While Fourth Amendment scholars often view wiretapping as a constitutional field under Katz v. United States and Berger v. New York, wiretapping has long been a primarily statutory field. Even today, wiretapping practice is governed by statutory commands, not constitutional ones. More broadly, Congress has created a wide range of statutory privacy laws that protect privacy in developing technologies where the courts have declined to offer protection.Third, legislatures have considerable institutional advantages that enable the legislative privacy rules regulating new technologies to be more balanced, comprehensive, and effective than judicially created rules. Rapid technological change makes it difficult for courts to clarify the law. Courts also lack the institutional capacity to readily appreciate existing technology and the impact of different legal rules. In contrast, courts are well equipped to respond to technological change in the context of criminal procedure rules.

The First Decisions

When a lawsuit challenges the constitutionality of a statute, the first step for the government is usually to file a “motion to dismiss,” which is an argument that a case should be thrown out because the plaintiffs’ arguments are simply not good enough to hold the court’s attention. A successful motion to dismiss can kill a case before it even gets off the ground. Many legal academics predicted that the challenge to Obamacare would not even survive a motion to dismiss, which is an almost sneering way of indicating how bad they thought the arguments against the law were.

The Law is Passed

Two days before President Barack Obama signed the Patient Protection and Affordable Care Act, Randy Barnett wrote this op-ed (abridged here) for the Washington Post. Barnett would eventually find himself on the legal team that challenged the law in the Supreme Court. At this time, however, there were just less-refined arguments and the hope that some court would take those arguments seriously.

Decision Time and Aftermath

The last week of June, which is the last week of a Supreme Court term, is always a busy time for Court watchers. The Court often waits until then to issue the biggest and most controversial decisions, which are also usually the longest ones.

The Big Show

On November 14, 2011, the Supreme Court agreed to hear the cases of National Federation of Independent Business v. Sebelius and Florida et al. v. Department of Health and Human Services.

Moving Up the Ladder

On June 29, 2011, the United States Court of Appeals for the Sixth Circuit upheld the individual mandate against a challenge brought by the Thomas More Law Center. Writing in concurrence with the panel was Judge Jeffrey Sutton, a noted conservative jurist and one-time clerk of Justice Antonin Scalia.

Postscript and Concluding Thoughts

In the aftermath of the Supreme Court’s decision in NFIB v. Sebelius, I authored op-eds for SCOTUSblog, the Washington Examiner, the Daily Beast / Newsweek, and the Washington Post, the last of which is reproduced in previous chapters. All sounded a similar theme: although I was bitterly disappointed by the failure of our legal challenge to bring down the woefully misnamed “Patient Protection and Affordable Care Act,” we were victorious in defeating the expansionist readings of the Constitution that had been offered by the government, and by many law professors, on behalf of the constitutionality of the individual insurance mandate.

Defending the Third-Party Doctrine: A Response to Epstein and Murphy

This is a brief response to papers by Richard Epstein and Erin Murphy on the third-party doctrine of Fourth Amendment law. Epsteins paper was published as Richard A. Epstein, Privacy and the Third Hand: Lessons from the Common Law of Reasonable Expectations, 24 Berkeley Tech. L.J. 1199 (2009). Murphys paper was published as Erin Murphy, The Case Against the Case for Third-Party Doctrine: A Response to Epstein and Kerr, 24 Berkeley Tech. L.J. 1239 (2009).