The Fourth Amendment’s Death Is Greatly Exaggerated . . . We Hope

Mark Wilson 

The Fourth Amendment is not merely on life support. According to Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals, it’s dead. Writing in a new iPad-oriented publication, The Daily, Chief Judge Kozinski and his law clerk, Stephanie Grace, gave the venerable amendment a eulogy and blamed all of us for its downfall.

They have a point. Our reasonable expectations of privacy have taken a downward turn in light of all the information that we give, voluntarily, to everyone from Kroger to Amazon. Did James Madison ever consider surrendering his privacy so that he could save 99 cents on a bag of potato chips? Curiously, The Federalist doesn’t say.

Enter the judiciary. Lower courts are wrestling with our reasonable expectations of privacy regarding our email. Warrantless searches of our laptops at national borders are routine and, so far, permissible. The Southern District of New York has at least accepted a challenge to these warrantless searches, but other courts have said that they’re perfectly okay. In its upcoming term, the U.S. Supreme Court will decide whether police must obtain a warrant before they may attach a GPS device to a car. The Fourth Amendment is bubbling on the surface of new technology.

Traditionally, “reasonableness” has been a balancing test: what do the rest of us expect when it comes to privacy? What are we willing to surrender, and what are we willing to tolerate, when it comes to law enforcement encroachment into our lives? James Madison must necessarily be left behind as we decide for ourselves what is reasonable in our private communications over methods that could conceivably be intercepted by third parties. The Internet simultaneously represents a great boon and a great threat to the free flow of information: sure, Google processes petabytes of information daily, but it remains to be seen to what degree it can willingly (or unwillingly) hand over our search queries to law enforcement without our consent.

Chief Judge Kozinski has a point — right now. Absent further developments in Fourth Amendment jurisprudence, things look grim for our expectation of privacy. Utilizing a strict interpretation of the Fourth Amendment, voluntarily divulging the details of our private lives to corporations means the end of privacy. But only because of Madison’s lack of imagination.

Kroger cards and Amazon are here to stay because of the convenience they afford our modern way of living. It seems more likely that the Constitution will have to bend, as it has in the past, than it seems likely that these conveniences will be abandoned. The United States in 2011 functions because we delegate to others the responsibility of handling our communications, but failing to extend Fourth Amendment protections to our way of life could end the ease with which we text and email. It seems a Faustian bargain to lock our communications into an 18th-century way of thinking if we want to avail ourselves of the considerable convenience of the modern world. “If you don’t want the government to invade your privacy, then you must send a snail-mail letter to the recipient; otherwise, the entity that handles that communication can hand it over to anyone at any time.”

Full disclosure or anachronism? Surely Chief Judge Kozinski thinks better of the judiciary than that. And I hope — as he no doubt does, as well — that he’s wrong.

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