Why the Fourth Amendment’s Protections Must Endure

Editor’s note: This is one installment in a One Small Step series exploring how our founding principles apply to policy change movements. See the series introduction and full collection here. 

As Technology Evolves, James Otis Warned Us that the Fourth Amendment’s Protections Must Remain Robust  

As America approaches its semi-quincentennial, it is worth reflecting on why the Founders felt it necessary to separate from Great Britain, and the protections of individual liberty and property they wisely enshrined in the U.S. Constitution to guard against the abuses necessitating this separation in the future. Even as our society continuously changes and technology evolves, the principles of human progress espoused in the Declaration of Independence remain just as timely and relevant today as in 1776. The same holds true today for the Constitution’s system of checks and balances and the individual liberties guaranteed by the Bill of Rights that have allowed our Republic to endure and prosper.  

The Fourth Amendment is one such protection. It promises that Americans have the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and that “no Warrants shall issue, but upon probable cause, . . . particularly describing the place to be searched, and the persons or things to be seized.” It thereby bars the government from launching suspicionless fishing expeditions and rummaging around our private “papers” and “effects,” instead generally requiring a particularized warrant based on probable cause signed by a neutral judge. In this way, the Fourth Amendment also safeguards individual liberty and privacy against arbitrary government intrusion.  

These core protections, as Justice Joseph Story wrote, are “indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property.” As Justice Robert Jackson later observed, the Fourth Amendment’s guardrails on government surveillance protect “indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart.” He continued: “Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.” The Fourth Amendment guards against this danger, thereby also safeguarding other core constitutional rights such as the First Amendment guarantees of freedom of speech and assembly and right to free exercise of religion without government interference. 

 This Term, the U.S. Supreme Court will decide an important Fourth Amendment case, Chatrie v. United States, that tests whether “geofence warrants”—a modern-day investigative technique whereby a search is conducted for the movement history data of everyone within a particular area during a period of time—comport with the Amendment’s requirements. Unlike traditional government searches, which target a particular person suspected of possessing evidence of criminal wrongdoing, “geofence” warrants are a form of “reverse” search warrant targeting a particular type of potentially incriminating evidence (for example, cell phone location data identifying people near a crime scene when it occurred) and then working backward to identify suspects from that information. These “geofence” warrants thus sweep up the movements of people who are unknown and may be innocent of any criminal wrongdoing and work backward to identify particular people who were within the area and track their precise locations. These are tremendously powerful law enforcement tools and can track people’s movements in sensitive areas like homes, churches, and protests. In Chatrie, the Court must decide how the Fourth Amendment’s Founding-era text applies to a modern technology the Framers could not have foreseen and ensure that its property-focused protections of liberty and privacy remain at least as robust today as when it was ratified in 1791. 

As Americans for Prosperity Foundation wrote in an amicus brief in support of Mr. Chatrie: 

[A]s America nears its 250th birthday, it bears reminding that general warrants granting government agents untrammeled search-and-seizure powers were among the grievances that inspired the Founding generation’s desire for independence from the Crown and a core animating principle behind the Fourth Amendment. 

While the Framers could not have imagined geofence technology, they were certainly familiar with government abuse of general warrants to arbitrarily rummage through people’s private papers, effects, and even homes without suspicion of wrongdoing. Indeed, a core grievance cited in the Declaration of Independence was that King George “has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.” One of the most ardent Founding-era opponents of the reviled writs of assistance—which enabled government officials to indiscriminately enter and search people’s homes for no reason or notice—was James Otis. Indeed, his forceful arguments against these general warrants helped galvanize the colonists toward independence and are reflected and enshrined in the Fourth Amendment. He called these general warrants the “worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law[.]” 

James Otis’s warnings remain just as relevant today as technology continuously evolves. The danger of general warrants—or the functional equivalent—remains as acute today as what the Founders experienced. Technological innovation is key to unleashing economic growth and prosperity. But the increasingly intrusive government surveillance capabilities these innovations enable, if left unchecked, threaten the liberty and privacy of all Americans and potentially portend the emergence of a dystopian police state. Today, many are understandably concerned about this possibility. As AFPF’s amicus brief explains: “Pervasive and persistent government monitoring of Americans’ movements, communications, and transactions is incompatible with a free society and antithetical to the property-focused protections of privacy and liberty enshrined in the Fourth Amendment. The Amendment neither contemplates nor tolerates the creation of a government surveillance state.” 

The Founding generation could not have foreseen and anticipated that as America’s 250th birthday approaches, technology would exist that gives government the capability of continuously tracking people’s movements, communications, financial transactions, and other private, sensitive matters over a period of years at relatively low cost. But the Framers certainly had experience with uncontrolled, abusive searches and seizures at the hands of the British. And the protections they wisely enshrined in the Bill of Rights, including the Fourth Amendment, were not based merely on abstract political theories but were real-world, practical safeguards against the types of abuses they suffered at the hands of the Crown.  And while the meaning of the Fourth Amendment’s words remains fixed over time, today it must continue to provide a key safeguard against arbitrary and overreaching government surveillance, including investigative techniques like “reverse” search warrants that raise the same concerns as Founding-era general warrants, if left unchecked.  The scope of the Fourth Amendment’s protections does not turn on the capabilities of modern technology; on the contrary, it guarantees at least the same baseline level of protection today as when it was ratified. Chatrie provides the Supreme Court with an opportunity to reaffirm that bedrock constitutional principle.