Tuesday, May 4, 2021
Tim O'Brien has posted New Writs of Assistance: Geofence Warrants and the Fourth Amendment on SSRN. Here is the abstract:
This Article explains why this situation is perilous, and describes the widening gap between existing Fourth Amendment jurisprudence and rapidly advancing technology to obtain, aggregate, and correlate data about citizens, both anonymous and uniquely identifying, to surveil and profile the public, with a focus on geofence warrants as this era’s emblematic investigative tool. This Article will explain why anonymization is a weak safeguard and argue for more stringent requirements to bring judicial domain knowledge in line with that of law enforcement officers, who have greater access to specialized training in digital forensics. Lastly, the Article will discuss needed reforms to current statutory protections that no longer possess the ability to constrain government intrusion into our daily lives. The judiciary and legislatures place checks on one another, but both are quickly being left behind by technology advances, big data, and private sector inclusion in modern law enforcement.