Probable Cause

Orin Kerr, of the Volokh Conspiracy — never trust anyone involved in a conspiracy — has just published an article for the Stanford Law Review about the Internet and the Fourth Amendment. The article has been discussed by Scott Greenfield, Jeff Gamso, and “Publius”; the last name is a pseudonym “for any contributor [to Affirmative Links] who wishes to use the name.” This time, Publius appears to be Jamie Spencer from Austin Criminal Defense Lawyer; he has written on this issue before.

I’m jumping into the fray because I’ve written a time or two about that quaint, ancient relic known as the Fourth Amendment myself.

Kerr’s article doesn’t really change the fact that nobody believes in the Fourth Amendment anymore. He as much as admits that when he says, “Technology neutrality assumes that the degree of privacy the Fourth Amendment extends to the Internet should try to match the degree of privacy protection that the Fourth Amendment provides in the physical world.”

My original intent when I sat down to write this article was to explain my disagreement with Kerr’s approach. As I began to write the set-up, I realized the set-up itself was taking on the dimensions of an article of its own. I don’t want to leave out the set-up, nor do I want to risk that people will avoid what I have to say because the article is too long.

Therefore I intend more than one article addressing Kerr’s proposal, with this one being concerned with foundational issues I think are important to any such discussion.

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Once upon a time, in the land that would one day become the United States of America, law enforcement officers of the King of England were allowed by the King to stop and search citizens of the land without the need for specific warrants.

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On The Truman Show, Jim Carrey played a character whose every move was available to the television-viewing public 24 hours a day, 7 days a week, all his life.  Carrey’s character, Truman Burbank, had been adopted by a corporation as a baby and raised on an island within a domed “stage” constructed specifically to turn his whole life into one big reality show.  Near the end of the movie, Truman discovers the truth and manages to escape his faux world, presumably finding a real life of privacy.

In “reality,” this can only happen in the movies.

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