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The Fourth Amendment with Over 200 Years of New Technology:

Do Changes to the Amendment Need to be Made?

When the Fourth Amendment was originally written in 1787 the technological advances

of today were never considered realistic. Therefore, the Fourth Amendment has many different

interpretations when the computer network comes into play. Police force and government

officials have been working together to find the balance between obtaining valuable information

and invading privacy. In today’s growing age of technology it has become much more difficult

for citizens to control who can access their digital personal information, so the government now

has the burden of deciphering which information is considered public and which is private.

Historical Application

When writing the Fourth Amendment, the revolutionists were worried about the previous

issues they had in England where the government’s power for search and seizures was abused

(Kuhn). The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.

In an article written in 1890, an attorney and a soon-to-be U.S. Supreme Court Justice

also defined the Fourth Amendment as the “right to be left alone” (Wikipedia). The courts have

previously decided that privacy should be maintained in public phone calls, private homes,

places of business, and sealed bags; on the other hand, privacy does not necessarily exist in bank

records, passenger components (trunks and glove boxes), phone numbers, and electronic or paper
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records (Weiss). The courts decide what is a “necessary” search by giving out warrants. Warrants

are what keep the government from invading privacy without a probable cause. Although, today

government officials are able to “pull up stored information about any given resident with a few

mouse clicks” (Curry). There are many cases where the amendment does not have specifications

towards new inventions that were not achievable when it was written.

The most common new invention is the motorized vehicle invented about 100 years after

the constitution. Historically cars have been around for a long time, but there is still debate

against how the Fourth Amendment should protect that property. Many cases involving vehicles

and the Right to Privacy also involve the Right to Movement. For example, a warrant is required

to track the movements of a privately owned vehicle with a G.P.D. (global positioning device)

for an extended period of time because it is considered an invasion of privacy. In a later case in

1998, the Supreme Court decided that the Indianapolis police leading drug does over 1,000 cars

violated the citizens Right to Privacy (“Privacy”).

When citizens are in their cars they don’t normally expect to be tracked or watched.

There are many other cases involving the Fourth Amendment where the defendant’s believed

they were in a private space. In 1967 the case Katz v. U.S., the courts decided that privacy should

be protected anywhere privacy was expected (Kuhn). Occasionally, the government will try to

use loopholes when attempting to inspect in someone’s privacy.

The Privacy Act of 1974 put limitations in place on the amount of private information

different branches of the government can share with each other. However, sharing private

information with private business is not restricted in the act. This allows the government to sell

personal information to counsels, employers, insurance and banking companies, etc. After being

released to the companies the data can often be resold and eventually transferred to a different
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office of government giving them a loophole in a legal way. The money made from selling this

information goes to the state government, but many citizens believe that the money should go

towards the citizens (Curry). Loopholes like these and unconstitutional searches become easier

with the technological advances, and soon there will need to be a way to protect the data in the

Fourth Amendment (American).

Modern Day Application

With today’s world of technology, most online programs will ask for personal

information. As EBSCOhost researchers believe, “... the greatest threats to privacy are virtual

rather than physical” (“Privacy”). Originally, the amendment prohibited any unnecessary

searches and seizures (Weiss). However, now each person who uses the internet creates a “digital

footprint” that contains personal data, and can grow over time (American). In fact, most websites

that users visit can collect data automatically. For example, Cookies (which are commonly used

in social media programs and shopping apps) allow websites to track their users likes, purchases,

and other activities to better the use of their programs (Kuhn).

There have been many acts made to try and help protect citizens’ privacy. Since DVD’s

were made many citizens will rent movies that they would wish to keep private. The Video

Privacy Protection Act of 1988 requires consent or a warrant before searching a person’s DVD

rental data. The Electronic Privacy Information Center believes that the Video Privacy Protection

Act of 1988 is “one of the strongest protections of consumer privacy against a specific form of

data collection” (Kuhn). Another act like this is the Right to Financial Privacy Act. This act

requires consent for a bank to release banking records without an issued warrant. However, this

act could be overruled with the Gramm-Leach-Bliley Act (GBLA) or the Financial Services

Modernization Act of 1999. This act “Allow[s] financial institutions more freedom to merge”
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(Kuhn). For example, when a banking company merges with an insurance company under

GBLA the customers must choose an opt-out option or the bank assumes it has the permission to

use the data however they want. In 2002 North Dakota rebelled and brought attention to this

issue. They then voted for the opt-in standard instead of the opt-out standard (Kuhn).

Changes in technology are greatly affecting the “balance between privacy and disclosure”

(Wikipedia). As of the year 1998 there were already 2,397 cameras in Manhattan, New York. In

fact any picture that is taken from the sky is not considered an invasion of privacy because the air

above citizens’ homes is considered a “public highway” (Kuhn). There are many ways the

government can legally invade privacy with technology. One of these ways is the Carnivore

System. This program uses particular word searches, and goes through all emails to alert the

authorities of any suspicious behavior (“Privacy”).

New specifications need to made within the Fourth Amendment to account for the

changes in technology. For example, normally when an officer is arresting a citizen they are

allowed to search the person and their property within reach. Should this include a cellphone?

The government believes cellphones should be searched like any other personal effect because it

can provide the police with very valuable information. During the case Riley v. California the

defendant was arrested for possessing unlawful weapons when the police went through his

cellphone, and found evidence that he was an accomplice to an attempted murder. In June of

2014 the Supreme Court decided that the police may obtain the cell phone, but will be required

to wait to search its digital data until a warrant has been received (“Privacy”).

In the Fourth Amendment there is an old rule “that one forfeits one’s privacy regarding

any information shared with a third party” (“Privacy”). However, now any information that is

shared online becomes shared with the website, app, or other program. This is an example of
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why the amendment may need some revision regarding today online lifestyle. Thankfully, the

EBSCO researchers have found that “the Court [has] declined the government’s invitation to

mechanically apply pre-digital-era precedents to digital technology, which would have given the

police the ability to intrude on privacy in previously unimaginable ways” (“Privacy”). The

American Civil Liberties Union (ACLU) has created a project to also try and help fight these

issues. The ACLU’s Speech, Privacy, and Technology Project has been working to limit the

government’s access to personal data by “secure[ing] a warrant requirement” in the courts

(American).

Personal Application

I believe that a revision of the Fourth Amendment is long overdue. There are many cases

where government officials can search personal data and go unnoticed. One of the most relevant

scenario of these today would be social media. Everyday teenagers like me will share photos,

information, and locations online. Not only can this cause a danger with other citizens; it can

sometimes self-incriminate a student.

It has become very popular for teenagers to post pictures of themselves and friends

enjoying their illegal hobbies. This often can restrict a student’s current participation in a sport,

club, or other school activities because they have violated the student code of conduct. These

posts can also become accessible to officers which could further self-incriminate the teenager,

but this time with much more serious consequences through the law.

Many programs that teenagers my age and I use ask for background information. When

using shopping apps like Amazon the users’ name and address are required, and sometimes it

will ask for contact information such as a phone number and email. It is also common for these

programs to automatically track shopping habits, so they can make better suggestions for the
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user. Most of these sites keep the information private, although the government can still gain

access to it with a warrant. This category of apps are the least concerning because of the Right to

Financial Privacy Act (previously mentioned on page 4).

Sometimes social media can become dangerous for kids and teens who do not fully

understand how many people can easily access the information they put on social media. Most

social media apps like Facebook, Instagram, and Snapchat require background information.

Often times people my age will “profile stock” a person when trying to find information on

them. Normally this is harmless because the teen is usually just jealous of a person or are simply

curious about their relationship because they are interested in them. However, this can become

threatening if the person has bad intentions. To avoid this social media companies often offer a

“private profile” option preventing any users to access much information through a profile. From

an unprotected profile a person can find information on their relationship status, family, birthday,

full name, school, friends, and sometime their location.

Now there are many ways to share location online. Usually it is used as promotion for a

restaurant, resort, or event. Although, sometimes teenagers will even be completely unaware that

the program they are on will share their location automatically unless they have rejected its

access through settings. Sharing location online can become very dangerous, but mostly this

occurs with other citizens. It is common for pediophiles to try and access teenagers’ social media

accounts so they can see their photos, find information on them, and sometimes to track that

teenager down. Without making accounts private it can become easy for another person to access

anything that the user has uploaded.

In conclusion, protecting citizens’ privacy from officers and other citizens has become

difficult as technology becomes more relevant. I believe that online programs and the
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government both need to make some changes to improve the average American’s privacy. The

amendment that was written in 1787 has no way of protecting the citizens from searches in the

new forms of technology. Revision will become necessary as more inventions are being made.

Also, the entrepreneurs who decide to take advantage of these new discoveries must be aware of

their responsibility to protect the users’ privacy while using their program. Everyone is partially

responsible for the lack of privacy online.