Computer Search and Seizure Under the Fourth Amendment: The Dilemma of Applying Old-Age Principles to New-Age Technology

March 2, 2011Articles Criminal Law Reporter

Few provisions in the Bill of Rights illustrate the shortcomings pf an “original intent” approach to constitutional interpretation better than the Fourth Amendment’s guarantee against unreasonable searches an seizures. Eighteenth-century words must be given new meaning to maintain their currency in the 21st century. As recordkeeping has shifted from storing a few parchment documents in Colonial-era footlockers to housing millions of bytes of data on portable laptops, notebooks and personal digital assistants, Fourth Amendment jurisprudence has struggled to balance legitimate law enforcement needs with modern expectations of privacy in electronic storage media. No consensus has yet been achieved on how to update the legal construct of the Fourth Amendment to encompass new means of maintaining information, as the courts of appeals have arrayed themselves at every imaginable point along the spectrum of possible interpretations.

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