Abstract

Written during a context characterized by the physical existence of documents and tangible property, the Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures of their “persons, houses, papers, and effects” (1. U.S. Const. amend. IV). The unprecedented spread of digital technologies has fundamentally altered our conception of privacy and the need to revisit and update this constitutional privacy protection. In today’s information technology world, citizens are connected by networked, connected, intertwined platforms—portions of users' personal information reside not within the physical environment, but the digital environment with devices such as smartphones and cloud storage. Digital data is layered, massive, and often stored in several jurisdictions- unlike physical evidence. Modern investigatory evidence can provide access to decades’ worth of personal information with one warrant. Literature by Moccia (4. 2019) predicated on physical property, has difficulty keeping pace with technologies that log details of every minute of daily life. This change has revealed flaws in the Fourth Amendment’s reach to digital data. This paper argues that to remain effective, the Fourth Amendment must adapt to the new frontier of digital evidence by addressing cloud storage, algorithmic analysis, and large-scale data collection. The Founding Fathers drafted the Fourth Amendment in response to British general warrants and writs of assistance, which allowed broad, suspicion less searches. To some people, early American law was about restricting government intrusion into material premises. Katz v. United States (6, 1967) broadened those protections above physical property and famously stated that “the Fourth Amendment protects people, not places.” Katz also proposed the reasonable expectation of privacy test, but the tests are still difficult to apply to electronic data. As Kerr (7. 2010) suggests, digital searches must specify clearer, ex ante or forecasting rules which apply because the level of involvement reached is markedly more severe than that experienced with traditional physical searches. Research provides real evidence that digital searches are inherently different from physical searches--and should therefore contain highly crafted rules aimed at preventing the encroachment of any one legal amendment. And a refreshed Fourth Amendment must be based on three pillars. First, judges and defendants should have access to algorithmic processes, error rates and validation studies in order to ensure fairness. Second, temporal limits, warrants must specify how much digital information can be maintained and must involve deletion of extraneous material. Third, a focused scope warrant should list file categories, date periods, and applications and analytic tools that are permitted in the search process. There is an additional need for members of academia, industry, and government to help policymakers define who should be able to regulate AI-powered investigative tools.

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