CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, March 14, 2023

Ferguson on Digital Rummaging

Andrew Guthrie Ferguson (American University Washington College of Law) has posted Digital Rummaging (Washington University Law Review, Vol. 101, No. 5, Forthcoming) on SSRN. Here is the abstract:
The digital world encodes our lives with incriminating clues. How you travel, live, love, and shop are tracked through growing surveillance technologies. Police have recognized this reality and are actively exploiting new surveillance tools for investigative purposes.

The Fourth Amendment – the constitutional protection meant to limit police search powers – has not kept up with the privacy and security threats of these new digital technologies. Current doctrine has remained stymied by legal tests asking all the wrong questions about “reasonable expectations of privacy” and “trespass” searches. While the Supreme Court has acknowledged that “digital is different,” it has not yet provided a coherent theory to protect individuals from growing digital surveillance.

This Article offers an alternative Fourth Amendment theory based on the harm of rummaging – a principle that can trace its lineage from the Founding debates around General Warrants and the Writs of Assistance to the Supreme Courts’ most recent cases on cell phone location data. Fear of government agents rummaging into private homes and papers motivated the passage of the Fourth Amendment and has remained a doctrinally coherent through-line recurring in Fourth Amendment cases.

This Article develops the “rummaging test” as a new way to see the harms of government collection of digital evidence. The Article excavates rummaging as an original justification for the Fourth Amendment and then demonstrates how the digital rummaging concept perfectly responds to the harms of government surveillance in the digital age. The rummaging test recognizes that the arbitrary, overbroad, invasive, exposing collection of personal data reflects the same harms that gave rise to the Fourth Amendment in the first instance.

The Article seeks to refocus attention on the government’s power to rummage through personal data by examining legal challenges around geofence warrants, smart home data, and long-term pole cameras. The hope is to move the longstanding background principle against rummaging to the foreground of Fourth Amendment analysis, and thereby answer some of the hardest questions facing courts confronting challenges to digital surveillance.

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