The Fourth Amendment to the U.S. Constitution protects privacy by governing how police may surveil people’s effects, including their electronic data.
The Fourth Amendment is one of the main constitutional privacy protections in the United States. The Fourth Amendment prohibits unreasonable searches and seizures without a warrant—generally, law enforcement must obtain a warrant when a search would violate a person’s “reasonable expectation of privacy.” The Fourth Amendment also requires that warrants be supported by probable cause and describe with particularity the places to be searched and persons to be seized.
The advent of the internet and other digital technologies has ushered in new issues about when police must obtain a warrant, what must support the warrant, and what the warrant must say. Recurring questions include whether exceptions to the warrant requirement developed before cell phones and the internet apply to electronic data and the point at which police use of surveillance technology interferes with individuals’ reasonable expectation of privacy. EPIC works to ensure that advancing technology does not erode Fourth Amendment rights, primarily by participating as a “friend of the court” in important Fourth Amendment case.
Technological Advances Make Constitutional Privacy Protections More Important Than Ever — The Riley And Carpenter Decisions
In two seminal cases—Riley v. California (2014) and Carpenter v. United States (2018)—the Supreme Court has recognized that people have a reasonable expectation of privacy in the contents of their cell phone and in their historical location information. These cases show that the Court is reluctant to extend pre-digital warrant exceptions to new technological situations.
In Riley, the Court decided that the “search incident to arrest” exception to the warrant requirement did not apply to cell phones. Under the traditional search-incident-to-arrest exception, law enforcement did not need a warrant to search objects on a person being arrested because the officer’s safety during the arrest depended on ascertaining whether the objects were weapons or contained weapons. In Riley, the Supreme Court refused to expand this exception to searches of cell phones during arrests because police do not need to look at the contents of the phone to determine whether the phone is a threat to their safety. The Court found that the warrantless search of a cell phone would be an unreasonable invasion of the person’s privacy because of the vast amount of personal information it contained.
Similarly, in Carpenter, the Court found that police needed a warrant to obtain weeks-long records of people’s movements generated by their cell phones, refusing to expand the “third-party exception” to the warrant requirement. Under the traditional third-party exception, people have no reasonable expectation of privacy in information held by a third party. In Carpenter, law enforcement attempted to use this exception to justify obtaining cell phone tower location records from the defendant’s phone carrier without first getting a warrant. The Court ruled that people have a reasonable expectation of privacy in their movements over a several weeks-long period because the information creates a revealing portrait of the person’s daily life.
EPIC’s Fourth Amendment Work
EPIC fights to ensure that our constitutional rights are not eroded by new technologies, primarily by participating as a “friend of the court” in important Fourth Amendment cases.
EPIC has filed briefs in cases about whether school administrators may search through students’ cell phones without consent, whether the police may collect people’s DNA before they have been convicted of a crime, whether cities may compile information about people’s e-scooter rides, and whether the police may collect a person’s public transportation records without a warrant. EPIC has also intervened in cases involving the scope and methods used in searches of private information, such as whether police who have probable cause to search a cell phone for one crime may conduct a wholesale searchof the phone’s entire contents for any crimes, whether police can search electronic data automatically scanned and reported by service providers without first obtaining a warrant, and whether law enforcement may search through phones without a warrant near the border.
Recent Documents on Fourth Amendment
O.W. v. Carr et al.
US Court of Appeals for the Fourth Circuit
Seymour v. Colorado
Colorado Supreme Court
Whether reverse keyword search warrants violate the Fourth Amendment to the U.S. Constitution and the Colorado state constitution.
Tuggle v. United States
US Supreme Court
Whether the Fourth Amendment protects against warrantless long-term, continuous, and covert pole camera surveillance of the outside of a person’s home
Sanchez v. Los Angeles Department of Transportation
US Court of Appeals for the Ninth Circuit
Whether compelled disclosure of detailed location information on individual e-scooter trips violates the Fourth Amendment.
Artificial Intelligence and Policing: Hints in the Carpenter Decision
Elizabeth Joh | 2019
The Aftermath of Carpenter: An Empirical Study of Fourth Amendment La
Matthew Tokson | 2022 (forthcoming)
Law and Policy Oversight of Familial Searches in Recreational Genealogy Databases
Erin Murphy | 2018
It’s Time for a Reckoning About this Foundational Piece of Police Technology
Rashida Richardson | 2020
Tiny Constables and the Cost of Surveillance: Making Cents Out of United States v. Jone
Kevin Bankston & Ashkan Soltani | 2014
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