Privacy, Technology, and the Fourth Amendment: "The Fourth Amendment in the Digital Age" Master Post

The following blog post contains all of the guest posts that the Criminal Law Practitioner published in anticipation of "The Fourth Amendment in the Digital Age" symposium.

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Surveillance, Grown Up: Broader and Deeper than Eavesdropping of Yore

The revelations of mass global surveillance in recent years by the United States and its global partners have exposed a dramatic shift in how law enforcement and intelligence agencies conduct and justify surveillance activities.  Modern surveillance has gone from passive capture of signals to active interference with devices, systems, networks, and communications; from targeted scrutiny of individuals to surveillance of millions in bulk; from examining basic communications content and metadata to fundamentally intrusive analytical techniques.  All of these changes are occurring over a backdrop of rapid changes in communications technologies and services that have rendered legal distinctions between foreign and domestic communications artificial and unworkable.

Uncovering Secret Surveillance

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It’s hard to read the newspaper these days without coming across an article describing yet another powerful government surveillance tool, often one that has been used for years without being disclosed to the public.  The most striking recent example is the use of stingray surveillance devices by local law enforcement around the country.  The secrecy has been so thick in part because the FBI requires law enforcement agencies to sign non-disclosure agreements before acquiring stingrays.  In this sort of environment, what’s a diligent criminal defense attorney to do?

Of Drones, Phones and Privacy Zones

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Back when I started in the privacy advocacy community -- about 20 years ago, at the ACLU -- we used to talk about the incredible shrinking Fourth Amendment.  It was a riff on the Lilly Tomlin movie – The Incredible Shrinking Woman.  In the movie, Tomlin’s character shrank because she was exposed to an experimental perfume.  The question we face today is whether the zone of privacy protected by the Fourth Amendment will shrink on account of our use of technology.