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The Codification Of The Fourth Amendment

1384 words - 6 pages

The most difficult problem that arises for the courts because of technology is the codification of the Fourth Amendment to apply to technological change and progress. The vast changes technology brings to surveillance, security, and data collection offer a challenge to courts in classifying these new technologies and monitoring their use within the limits of the Fourth Amendment. The Fourth Amendment states that people have the right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” An influential dissent written by Louis Brandeis contends that the amendment does not simply protect a person’s property but the “right to be let alone.” Though, current Fourth Amendment law echoes Brandeis’s opinion, courts run into new problems of interpretation as new technology is developed. Courts are forced to utilize cumbersome metaphors in order to make laws based on a constitutional amendment that was written by people who could not anticipate the technological changes that would happen in the future. This makes it difficult to anticipate and provide for changes to come, so courts are constantly playing catch-up as new technologies and new uses for those technologies are brought up. In addition, courts need to leave room for uncertainty in laws and decisions in order to allow for future technological change. Several cases make apparent the court’s struggle to consistently apply the Fourth Amendment to growing technologies: Kyllo v. United States, United States v. Andrus, and !!!!!!
In Kyllo v. United States (2001), the police used a thermal imaging device in order to procure evidence that Kyllo was growing marijuana in his home. With the information obtained from the device, they were granted a search warrant and discovered that he was in fact growing marijuana. Kyllo argued that the use of the heat-sensing device itself was a search. In this case, the court addresses the specific question of whether heat sensing constitutes a search. The more encompassing question asked by the court, however, is whether there are limits on technology that should be in place to protect privacy. The powers of technology seem to shrink the boundaries of privacy protected by the Fourth Amendment. This is explained in the case by referencing Katz, where the eavesdropping device was designated a search even though it picked up only sound waves that reached the outside of the phone booth. The Court follows this point by stating, “Reversing that approach would leave the homeowner at the mercy of advancing technology – including imaging technology that could discern all human activity in the home.” They gave the example of a more sophisticated device that would be able to detect “at which hour each night the lady of the house takes her daily bath and sauna.” The Court says that it is necessary to “take the long view” and decide the case with future, more advanced technologies that might allow for the disclosure of intimate...

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