The Internet, The Fourth Amendment, and Technology Neutrality: A Response to Horowitz

Defense attorney and blogger Rick Horowitz has posted an extended two-part response to my new law review article, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010). His posts are here:

1. Orin Kerr’s Fourth Amendment & The Internet: Foundations

2. What’s Wrong With Orin Kerr’s Technology Neutrality

Horowitz’s major objection to my approach is that he opposes “technology neutrality” as a basic principle of applying the Fourth Amendment to the Internet. As I explain in my article, the basic goal of technology neutrality is to develop Fourth Amendment principles that roughly replicate the function of the Fourth Amendment offline in the online environment. Put simply, the Fourth Amendment should do for cyberspace what it does for realspace.

Horowitz disagrees. In his view, the Supreme Court has gotten the Fourth Amendment horribly wrong in realspace: Its protections are not nearly strong as they should be, reflecting decades’ worth of constitutional mistakes. He argues that the goal of applying the Fourth Amendment should be to be true to the real Fourth Amendment, which (as best I can tell) he sees as imposing a warrant requirement for essentially every step the government takes, a position he sees rooted in the Fourth Amendment’s textual protection of “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Horowitz writes:

Ultimately, the problem with keeping the Constitution — and thus the Fourth Amendment — alive today is not to extend some near-dead version of it to what is believed to be another new and necessary arena of governmental intrusion into the lives of the citizens whose liberties it was formed to protect, but to recognize that the damn thing is barely holding onto life as it is, and to revitalize it.

Kerr’s suggested approach fails to recognize this. Kerr’s constitutional amnesia assumes there is nothing wrong with the destruction of the Fourth Amendment — in fact, he does not even recognize it has been destroyed. Instead, he ratifies its wounds and suggests furthering the damage by extending its lack of protection to a new arena.

In response, I think Horowitz’s argument is less about applying the Fourth Amendment to the Internet than it is about the different question of applying the Fourth Amendment in the initial case of the physical world. As a result, I’m not sure my article and his response are necessarily in conflict.

That may sound weird at first. Certainly, if you read Horowitz’s posts, it sounds like his views conflict with those in my article. But my article is really about the conceptual problem of translating privacy rules developed for physical space to a communications network. The key issue is how you make the physical-space-to-communications-network conversion. I’m really not that concerned in this article with what the particular rules are that are being translated. If you want to change those rules, I could change a few pages of the article just to adjust. The article would otherwise be the same.

At bottom, I think Horowitz and I are interested in two very different questions. I’m interested in developing a theory of applying the Fourth Amendment in response to changing technology, and then applying that theory to the new case of the Internet. In contrast, Horowitz is interested in using the unanswered question of how the Fourth Amendment applies to the Internet to establish a sort of beachhead for how he thinks the Fourth Amendment should be applied. Given those two very different goals, it’s not surprising that we look at the issues so differently.