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How would you rewrite the Fourth Amendment to the United States Constitution if you feel it is outdated?

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One of the biggest challenges in modern Fourth Amendment jurisprudence is how to account for technology's effect on privacy. An update to the Fourth Amendment to address technological change could be useful.

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Since the 1700s, the Fourth Amendment has read:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

For a long time, the description "their persons, houses, papers, and effects" was sufficient to cover just about everything that the police were not allowed to search without a warrant based on probable cause (or pursuant to one of the many exceptions to the warrant requirement, such as a sudden emergency).

As technology has advanced over the past century, and particularly in the past 40-50 years, however, it has raised new questions about what counts as a "search," as well as what kinds of information we can reasonably expect are private.

One good example is the case of Kyllo v. United States (2001). Federal agents used a thermal imaging camera to take pictures of Kyllo's house. The agents got a warrant to search Kyllo's house for marijuana, since the thermal imaging indicated Kyllo was using heat lamps in the house.

Kyllo argued that the use of the thermal imaging camera violated his Fourth Amendment right, because scanning his house for hot spots amounted to an unlawful search of his house.

In a 5-4 decision, the US Supreme Court agreed. Writing for the majority, Justice Scalia said that if a technology wasn't in common, everyday use, then using it to search without a warrant was unconstitutional. The dissent, by contrast, argued that Kyllo didn't even try to conceal the heat leaking from his house, so that information was "public domain."

The problem with this standard is that it makes the answer to the question of "what technology can police use to search?" a moving target. Maybe thermal imaging was rare in 2001, but it's much more common today. Can police use thermal imaging to search if many people own thermal imagers?

An update to the Fourth Amendment could help address this issue by indicating whether technology-assisted examination of "persons, houses, papers and effects" counts as a "search" requiring a warrant.

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