The Fourth Amendment and the Digital Age

When the Framers of the Constitution submitted the Bill of Rights for ratification, they would have never imagined iPods, iPhones, and every other imaginable gadget infiltration the ubiquitous, socially autistic "I".

The context of the Fourth Amendment read thus:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Persons-- their very being. A citizen of the United States does not have to submit to being unduly and immorally stopped, frisked, strip-searched by the state police power.

Houses -- A man's home is his castle. No one may enter without a warrant. Exigent circumstances and other immediate exceptions have been ruled constitutional.

Papers --

Effects -- These respect the property (and properties) of an individual.

The four criteria were summarily outlined, in compliance with the exhaustive necessity of Common Law.

Yet where does a GPS monitor factor in with these four distinct criteria? What about a person's email account, or library records?

And does this Amendment proffer the central argument for a right to privacy?

Katz v. United States ruled that for the police to wiretap a suspect, they would have to get a warrant. Originalists have rejected the overt activism of the Supreme Court's ruling in that case. If United States jurists respect the due letter of the Fourth Amendment and nothing more, then the state has every right and opportunity to investigate and invade the private electronic correspondence of the citizenry.

The intent is not to protect the privacy of the people as much as to limit the encroachment of the government into our daily lives, setting boundaries to the proper police powers of the state.

From that basis, let us then articulate modern concerns with the Enlightenment legacy of the Founders' vision.

Written correspondence, not just pieces of paper, were the subject of protection. Therefore, any communication between private parties is to remain private until the proper requisition of a search warrant. This includes emails and other Internet information not posted for public consumption.

If the police wish to place a tracking device on a person's car (or any other mobile vehicle), then they must request a warrant, as a vehicle constitutes one of person's effects. The warrant must detail specifically what the warrant is looking for and to what extent it is to remain in operation.

Katz v. United States overran its judicial authority by instituting a right to privacy. The Supreme Court may not create rights out of thin air for citizens to litigate arbitrarily. Yet the Court has every right to construe currently electronic forms of communication with the letter and original intent of the Fourth Amendment.