Michael Scott points us to a fascinating book chapter by Christopher Slobogin, in which he discusses how the courts have effectively stripped away the Fourth Amendment in a technological era by effectively saying that “virtual” technology-based searches don’t fall under the Fourth Amendment and, thus, do not need the same sort of oversight. This is, as he notes, a problem and he argues that it’s time to bring those types of searches back under the umbrella of the Fourth Amendment:

Most virtual searches are not Fourth Amendment searches or, if they are, they can usually be carried out on little or no suspicion if they do not involve interception of communication content. Given the huge amount of information that virtual searches provide about everyone’s activities and transactions, traditional physical searches–with their cumbersome warrant and probable cause requirements–are much less necessary than they used to be. American citizens may eventually live, and indeed may already be living, in a world where the Fourth Amendment as currently construed is irrelevant to most law enforcement investigations. Technological developments have exposed the fact that the courts’ view of the Fourth Amendment threatens the entire edifice of search and seizure law.

The paper suggests some principles for bringing such searches back under the purview of the 4th Amendment — something that law enforcement and the government would almost certainly fight. However, it does make a really strong case for why such searches do deserve 4th Amendment protections. Between mistakes and abuse, there’s a reason why the founding fathers wanted to make sure that there was probable cause before the government invaded your privacy. Why should that change when things are digital?

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