Fourth Amendment law is often considered a theoretical embarrassment. The law consists of dozens of rules for very specific situations that seem to lack a coherent explanation. Constitutional protection varies dramatically based on seemingly arcane distinctions. This Article introduces a new theory that explains and justifies both the structure and content… (More)
and Legal Theory Paper #543.
This article explains some of the important issues that can arise when the government seeks the admission of computer records under the Federal Rules of Evidence. It is an excerpt of a larger DOJ manual entitled "Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations", which is available on the internet at Most federal… (More)
In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to Internet communications and records. ECPA is widely seen as outdated, and ECPA reform is now on the Congressional agenda. At the same time, existing reform proposals retain the structure of the 1986 Act and merely tinker with a few small aspects of… (More)
In this article, Professor Kerr argues that the common wisdom on the USA Patriot Act is wrong. Far from being a significant expansion of law enforcement powers online, the Patriot Act actually changed surveillance law in only minor ways and added several key privacy protections. By explaining the basic framework of surveillance law and applying it to the… (More)
For more than forty years, electronic surveillance law in the United States developed under constitutional and statutory regimes that, given the technology of the day, distinguished content from metadata with ease and certainty. The stability of these legal regimes and the distinctions they facilitated was enabled by the relative stability of these types of… (More)
For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong. Lochner is one of only a few cases that constitute our " anti-canon, " universally reviled by the legal community as the " worst of the worst. " Our first claim in this Article is that the orthodoxy in… (More)
The mosaic theory—first articulated by the Supreme Court in United States v. Jones two years ago—has turned out to be an empty promise of Fourth Amendment protection. However, this may have less to do with the theory itself and more to do with the context in which it has been applied. Introduced as a mechanism to combat long-term GPS police surveillance,… (More)