Wednesday, June 22, 2022
Stephen E. Henderson (University of Oklahoma - College of Law) has posted In Celebration of Dissents (And Lengthy Textbooks): How Digital Became Different for the Fourth Amendment And Why It Is Time for a Real Warrant Default (Ohio State Law Journal, Forthcoming) on SSRN. Here is the abstract:
The last decade has brought tremendous change to the Fourth Amendment, finally resulting in a ‘digital is different’ norm. We stand at an inflection point between a monolithic, analog past and a murky future of yet-unarticulated constitutional digital policing rules. It is a good time, then, to reflect upon how we came to be here and where we ought to go. This essay first looks back to a monumental, majestic dissent: that of Justice Louis Brandeis in the 1928 decision of Olmstead v. United States. Every American, and especially every law student, ought to know that opinion, and judges and scholars ought to appreciate how it charted the path we have now trod. The essay then turns forward, considering whether we are finally ready for a longstanding Supreme Court assertion that has never been honestly applied: a Fourth Amendment warrant default. Given ubiquitous digital data, a warrant standard will often be required for searches to be reasonable. And, even when it is not—when the needs of effective investigation and resulting safety outweigh privacy and liberty concerns—the modern Fourth Amendment space is uniquely well situated to a ‘penalty default’ in which the State shoulders the burden of convincing legislators and then courts that such lesser standard is constitutionally correct.