Order, Technology, and the Constitutional Meanings of Criminal Procedure




Journal of Criminal Law and Criminology



With new technologies accompanied by new roles for police in providing security and maintaining order, the Fourth Amendment’s relevance to modern life is becoming increasingly tenuous. In fact, one federal appeals court judge recently announced the death of the Fourth Amendment.1 Entrenched constitutional doctrine and technological advances have worked together to kill it. The Fourth Amendment protects only reasonable expectations of privacy, but the Supreme Court claims one cannot have an expectation of privacy in anything shared with another person—and we share practically everything. As a result, “the Fourth Amendment is all but obsolete.”2 The third-party doctrine, which removes Fourth Amendment protection from information shared with another person or entity,3 and the circularity of expectations of privacy, which depend on both judicial and social interpretive practices,4 have all but interred it. A dead Amendment combined with robust police practices may not augur a robust constitutional future in light of new technological and social practices.

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