Thread by @ProfFerguson

A thread on a my just published article — “Digital Rummaging” — that tries to reimagine the Fourth Amendment harms of new mass surveillance technologies.  #surveillance #privacy #FourthAmendment 1/12  

papers.ssrn.com/sol3/papers.cf…

I have been teaching the Fourth Amendment for 14 years now and still don’t know what a reasonable expectation of privacy is.

Especially, in a world of constant, ubiquitous digital #surveillance I will hazard a guess no one knows. 2/12

Yet, 18 months of a digital video surveillance of my home seems like something the Constitution should push back on.  I can’t imagine James Madison allowing the government to watch and record his home with a pole camera. 3/12

Same with my smart #IoT devices revealing the intimate (and boring) reality of my life.  Even if these #data streams are also stored on a third party cloud server, the Constitution should have something to say about arbitrary government collection. 4/12

But what’s the harm — why does it seem creepy and #privacy invasive that the government can just watch, wait, and surveil me without a warrant?  Why can they sort through my digital trails without a warrant?  Is it an expectation of privacy or something else? 5/12

My new argument is that harm involves “rummaging” and the danger of allowing the government to just rummage through my digital life.  Seeing the harm as not just a violation of an expectation of privacy but also government rummaging reshapes the Fourth Amendment doctrine. 6/12

Interestingly enough the theme of rummaging — an anti-rummaging principle — shows up a lot in the 4th Amendment doctrine. It shows up in the Founding era cases. It shows up in Boyd and the first interpretation of the 4th Amend. at #SCOTUS. It’s central to Entick & Wilkes.  7/12

Rummaging shows up all over 4th Amendment doctrine (plain view, search incident to arrest, particularity, etc.). It is regularly adopted as a limiting principle. Really, it is a “go to” fallback for the court over decades of cases. 8/12

Best yet, if you look at the Supreme Courts digital is different cases, digital rummaging is the harm that Chief Justice Roberts identifies (although does not name) in Carpenter and Riley.  He uses the term and principles over and over. 9/12

My “Digital Rummaging” article makes the argument that we have gotten the 4th Amendment wrong and we need a new test — based on rummaging. A test that can handle the harms of long-term pole camera or smart devices or geolocation or reverse keyword searches. 10/12

I think it is honestly the best article I have written (#35) (or at least the only one that Chief Justice Roberts and the more progressive justices (even maybe Gorsuch) might use to rethink the Fourth Amendment).  11/12

If you are litigating the Fourth Amendment in the digital age or writing about it, consider whether the harm involves rummaging.

Or just read “Digital Rummaging” and tell me what you think. 12/12

papers.ssrn.com/sol3/papers.cf…

And thank you to @WashULRev for excellent editing. Honestly top notch.