Legal Commentary

The Fourth Amendment, New Technologies, and the Case for Caution

By Orin Kerr

The difficulty some of the Justices had with pager technology in City of Ontario v. Quon yesterday reminds me of a passage in an article of mine on why judges should be cautious about applying the Fourth Amendment to new technologies. In the passage, I argue that judges are particularly likely to make errors in applying the Fourth Amendment to new technology because they are not well-situated to get a sense of the technology, its evolution, and the likely impact of potential Fourth Amendment rules. The argument goes on for several pages, but here?s a taste:

The task of generating balanced and nuanced rules requires a comprehensive understanding of technological facts. [C]ourts generally are not [well-equipped to develop such understandings].

The information environment of judicial rulemaking is usually poor. Judges decide cases based primarily on a brief factual record, narrowly argued legal briefs, and a short oral argument. They must decide their cases in a timely fashion, and can put only so much effort into any one case. In some contexts, these limitations do not impose a heavy burden on effective judicial rulemaking. Recall the automobile traffic stop cases. Because judges can readily understand traffic stops, a brief record and narrow argument is generally sufficient to allow judges to create rules governing the specific facts at hand.

In contrast, cases involving new technologies such as wireless networks, public-key encryption, and data-mining technologies raise more complicated issues. Judges struggle to understand even the basic facts of such technologies, and often must rely on the crutch of questionable metaphors to aid their comprehension. Judges generally will not know whether those metaphors are accurate, or whether the facts before them are typical or atypical given the technology of the past or the present.

These dynamics make it easy for judges to misunderstand the context of their decisions and their likely effect when technology is in flux. Judges who attempt to use the Fourth Amendment to craft broad regulatory rules covering new technologies run an unusually high risk of crafting rules based on incorrect assumptions of context and technological practice. The context of judicial rulemaking is unusually conducive to high rates of error when technology is in flux.

Full post as published by The Volokh Conspiracy on April 20, 2010 (boomark / email).