Is Fourth Amendment dead or just in a coma? Debating when to pull the plug

These days, being a fan of the Fourth Amendment is a bit like being an aficionado of horse racing or boxing ... a bit anachronistic and out of sync with the times, doomed to tilting at mostly irrelevant windmills that nobody else around you cares about. Until recently, I might have said Americans care less about the Fourth Amendment than, say, the heavyweight boxing championship. But after a recent, lackadaisical heavyweight title bout coupled  with renewed Fourth Amendment interest from grass-roots conservative quarters, perhaps Grits would revise that to say Americans care more about the Fourth Amendment than boxing, though probably still less than soccer.

At SCOTUSBlog, Orin Kerr reviews the Fourth Amendment cases from the latest US Supreme Court and finds their rulings routinely in favor of the government by vast margins. Meanwhile, the number of wiretaps grew by a third last year, and this fall, SCOTUS will hear a landmark case on the warrantless use of GPS on suspect vehicles. If the Supremes side with the government on that, as may be expected if recent history is any guide, then Katy bar the door.

An esteemed judicial author last week proclaimed the "Death of the Fourth Amendment," and the GPS case this fall may be a bellwether in determining whether that grim obituary is premature or prescient. I'm inclined to say the latter. US Chief Justice of the 9th Circuit Alex Kozinski would probably say it's a goner no matter what SCOTUS decides about warrantless GPS tracking. Kozinski argued (as summarized in the International Business Times) that:

the Fourth Amendment is dead and that "you’re the murderer. We all are." Among Kozinski's 'weapons of choice' are "the smartphone, which, with our collective blessing, allows law enforcement to monitor our real-time geographic location."

Among other things, this alludes to the recent iPhone and Android location-tracking controversy, in which it was discovered that many users' movements were being recorded, transmitted, and backed up into a database. This dovetails with other GPS and location-tracking capabilities -- as well as most mobile networks' willingness to turn records over to law enforcement, not to mention the increasing ease with which third-parties may 'eavesdrop' on such wireless signals.

Kozinski notes the efforts of Sen. Ron Wyden (D-Ore) to require warrants to access this information, but also feels that "such legislation may come too late to save the Fourth Amendment".

The judge mentions the doctrine of "reasonable expectation of privacy", which was added to the application of the 4th Amendment in 1967 during a case that tested the legality of wiretapping a telephone booth. In short, one cannot reasonably expect privacy in a public place -- and ever since then, the tricky legal question has been to establish what is 'reasonably' public.

Kozinski wryly observes that membership cards and credit cards create plenty of 'public' information that can be accessed and used to track a person's movements and habits to the benefit of law enforcement; this is known as "the third party doctrine".

From there, Kozinski names third party information sources such as eBay, Amazon, TomTom, and Google (who "not only collects data on what websites we visit but uses its satellites to take pictures of our homes"). The judge also mentions the controversial plan by Mexico to implement iris scanners that track out movements "through airport security, making ATM withdrawals and buying groceries, quite literally, with the blink of an eye."

"With so little left private," Kozinski concludes, "the Fourth Amendment is all but obsolete. Where police officers once needed a warrant to search your bookshelf for 'Atlas Shrugged,' they can now simply ask Amazon.com if you bought it. Where police needed probable cause before seizing your day planner, they can now piece together your whereabouts from your purchases, cellphone data and car’s GPS. Someday soon we’ll realize that we’ve lost everything we once cherished as private."

There's little doubt in the big picture that information gathered by private companies poses a greater risk of privacy breaches - both by the companies themselves and as a Fourth Amendment workaround for law enforcement - than government actors themselves. But because the government alone enjoys a monopoly on coercive force, the potential for abuse is greatest when government breaches personal privacy.

For example, the Obama Justice Department may seek to prosecute Google for alleged privacy violations that pale in comparison to similar routine uses by the FBI. An IT Word story on the topic included the subhed, "Google may face prosecution for mote in eye while feds are applauded for beam in their own." Google's troubles began after a federal court ruled that "passively listening in on unencrypted WiFi connections as you drive by in a car could count as illegal wiretapping." I don't like what Google is doing, but they're harming those whose privacy they're breaching much less than the feds when they do so. I agreed with these comments from IT World's Kevin Fogarty, who framed the issue essentially in terms of overcriminalization:

I agree the courts shouldn't stand idly by while Google scoops up bits of our personal data off the street and spirits it off into a meta-universal database to be analyzed for its profit and our loss.

I don't agree that the police should be allowed to strip search our digital selves, our physical selves and demand the right to know every move we make and every word we speak simply because we don't speak loudly enough against the law-enforcement hobby-horse obsession of the moment.

Sixty years ago you could become unemployable for having spoken approvingly of socialism while drunk in college; 40 years ago you could be investigated and harassed for wearing your hair long and belonging to a liberal fringe party.

Ten years ago you could be investigated, arrested and imprisoned indefinitely for no reason other than that someone accused you, with no other evidence, of being an Al Queda sympathizer.

Today, a federal court has ruled you can be prosecuted under federal wiretapping laws if your laptop picks up someone else's unencrypted wireless signal as you drive down the street.

There are some who think the Fourth Amendment should be abolished entirely in cyberspace, on a voluntary basis, no less. Fox News reports today that the CIA and other national security officials are "toying with the notion of creating a '.secure' domain where Fourth Amendment rights to privacy are voluntarily foregone in order to keep that corner of the Internet free of cyber criminals." Pretty straightforward: Scare people into exchanging privacy for safety.

The Internet brings new privacy challenges but there's no way it should require us to defenestrate the Fourth Amendment entirely. Certainly the Founding Fathers couldn't have foreseen the internet's influence nor craft their writings to account for how 21st century America relates to information. But either courts must be willing to stretch the Fourth Amendment's meaning to protect the privacy rights in a digital context - a task that risks judges being labeled "judicial activists" - or legislatures must themselves by statute restrict government authority to access data to prevent or mitigate abuses.

The Fourth Amendment may indeed be dead. Certainly its corpus appears lifeless and inert in the hands of the current US Supreme Court. But if so, the question becomes, will it become a martyr for the cause of renewing personal privacy in the digital era, or just another nameless, faceless battlefield casualty? One wonders: Will anyone mourn the Fourth Amendment's death, or will everyone just move to their new .secure domain listing and go on their merry way?