Stanford Law Professor Seeks Digital Fourth Amendment at IAPP
A Fourth Amendment exemption for searches at the border should be overturned because it doesn't fit today's digital age, Stanford law professor Orin Kerr argued in a Tuesday keynote at IAPP Global Privacy Summit for privacy professionals.
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“The ability to search a cellphone at the border is no longer just a small search,” Kerr said. “There have been reports just in the last two weeks of the [Trump] administration potentially using this to specifically search the phones of lawyers who might have evidence of their clients on their phones.” These lawyers might just be on an international vacation and “happen to have their cellphones with them.”
“But is that what the Fourth Amendment requires in a digital environment?” the professor asked. “Effectively, the fact that people are carrying their cellphones is just a windfall to the government when [people] happen to cross the border.” Unlike with physical searches at the border, he said, smartphone searches aren’t “really about … the sovereignty of the United States preventing contraband from entering the country.”
Kerr said the Supreme Court will have to decide that and other issues related to how the Fourth Amendment applies in the digital age, as lower courts have been split. “What I think they're going to have to do, and ultimately will do, is craft a specific set of rules for the digital world we're in.”