Robert S. Litt, The Fourth Amendment in the Information Age, 126 YALE L.J. F. 8 (2016), http://www.yalelawjournal.org/forum/fourth-amendment-information-age.
“To badly mangle Marx, a specter is haunting Fourth Amendment law—the specter of technological change. In a number of recent cases, in a number of different contexts, courts have questioned whether existing Fourth Amendment doctrine, developed in an analog age, is able to deal effectively with digital technologies. Justice Sotomayor, for example, wrote in her concurrence in United States v. Jones, a case involving a GPS tracking device placed on a car, that “the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties . . . is ill suited to the digital age.” And in Riley v. California, the Chief Justice more colorfully rejected the government’s argument that a search of a cell phone was equivalent to a search of a wallet: That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. I intend to discuss the application of the Fourth Amendment in the information age, and I want to start with two important caveats…”