Tuesday, December 21, 2010

Now for something completely different? The uncertain Fourth Amendment analysis of computer searches

From Lexology:
Few provisions in the Bill of Rights better illustrate the shortcomings of an “original intent” approach to Constitutional interpretation than does the Fourth Amendment’s guarantee of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Eighteenth-century words must be given new meaning in order to have currency in the twenty-first century. As record-keeping has shifted from storing a handful of parchment documents in a Colonial-era footlocker to housing millions of bytes of data on sleek laptops, Fourth Amendment jurisprudence has struggled to balance legitimate law enforcement needs with citizens’ modern expectations of privacy. No consensus has been achieved on updating the legal construct of the Fourth Amendment to encompass both old and new means of maintaining information.

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