Technology Rewrites the Fourth Amendment

Technology has changed how information flows, how people communicate, and even the meaning of “friend,” which has become a verb. Now, add to the imperial reach of technology the power to rewrite constitutional protections.

A case argued last week in the Supreme Court hinges on what Americans consider “reasonable” under the Fourth Amendment’s prohibition of unreasonable searches and seizures. Not even Mark Zuckerberg of Facebook has always correctly anticipated how much privacy people expect, so imagine how hard this is for nine people trained as lawyers, not engineers or online marketers.

The justices did their best. The facts of U.S. v. Antoine Jones are that District of Columbia police, working with the FBI, suspected a nightclub owner of being a drug dealer. They installed cameras near Antoine Jones’s nightclub, got his cellphone records, and attached a GPS tracking device to his Jeep Grand Cherokee. In 2005, acting on the information they had gathered, police executed a search warrant and found a huge stash of cocaine, firearms and cash. The defendant’s lawyers objected to the GPS, saying that tracking car movements over several weeks violated his expectation of privacy.

The Fourth Amendment is a rare part of the Constitution that explicitly requires judges to adjust standards to reflect changes in society. What was unreasonable before may be reasonable now. Most adults in the U.S. have created Facebook accounts, which disclose more information than the most avid gossip-monger could have produced in the days before social media.

As an example of how privacy expectations have changed, consider a case brought in the late 19th century. Actress Marian Manola was playing a Broadway role requiring her to wear tights, a racy outfit for the era. To protect her modesty, she got an injunction when someone in the audience used the new technologies of a camera and a “flash light.”

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 Read More at WSJ L. Gordon Crovitz, The Wall Street Journal