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Budapest W4: Human Rights and Emerging Technology - Towards a brighter fourth amendment


Levy, Joshua S. (2011) Towards a Brighter Fourth Amendment: Privacy and Technological Change. Virginia Journal of Law & Technology, vol. 16, no.4 (Winter 2011), 499–540.


"This Article seeks to develop a framework of bright line Fourth Amendment rules that continue to provide privacy protection regardless of advancements in surveillance technology. Unlike specific constitutional or statutory privacy protections, which constantly lag and risk misunderstanding new surveillance technologies, bright line rules ensure that no body of government has to play ‘catch up.’ The bright line rules protect privacy regardless of the new technologies that law enforcement agencies adopt, ensuring that existing Fourth Amendment protections do not become increasingly vacuous." p.2

"The “internalization” by society of each successful encroachment—internet companies attempting to sell personal information to third parties,22 media companies reporting lurid personal details23 and social networking and blogging sites24—results in vast decreases in privacy expectations over time." p.3-4

"Under current law, the constitutionality of body scanners in airports under the Fourth Amendment is an easy case;398 it should not be. Body scanners use “low intensity X-ray beams” to peer into airline passengers’ bodies to detect nonmetallic objects.399 Such government intrusion violates centuries of protections granted to the human body in all areas of law. A bright line Fourth Amendment rule protecting bodies not only prevents such government intrusions, but also encourages law enforcement to find alternative means to provide security. Moreover, the clarity of the rule ensures compliance regardless of future technological developments while creating a market for surveillance technologies that do not violate protected areas of privacy." p.37

" the only way to sufficiently protect society’s remaining privacy interests is to cabin off core areas of privacy with bright line Fourth Amendment rules. These rules not only ensure citizens’ privacy regardless of new technological developments, they also give law enforcement certainty when conducting investigations. By increasing the relative costs of invading the privacy of the home and the human body, the bright line rules create demand for non-invasive surveillance technology that will spur its innovation and widespread adoption. " p.38

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