Orin Kerr: Not an Empty Vessel and Not Responsive to my Point

Orin Kerr has a post up on the Volokh Conspiracy addressing my post here on his draft paper defending the third-party doctrine.

He echoes back the divide between us on what should animate analysis of the Fourth Amendment:

I treat the Fourth Amendment as a doctrine about criminal procedure, while Jim treats it as a way of ensuring a free society. The two approaches lead to very different criteria for analyzing Fourth Amendment rules. My approach generally focuses on whether rules pragmatically balance public safety and civil liberties in a regime backed by the exclusionary rule, whereas Jim’s approach looks to what is necessary to protect civil liberties and generally assumes that other legal mechanisms can take care of public safety concerns.

I do treat the Fourth Amendment as a tool for ensuring a free society, but I don’t put the “free society thesis” ahead of the text of the amendment, which I parroted repeatedly in my post. It’s odd – though well within mainstream legal thought – to treat as criminal procedure a part of our fundamental law that makes no mention of criminals whatsoever.

Kerr raises the original meaning of the amendment – actually, what motivated its authors. I’m not sure why he does this – to justify not working with its actual text? According to one scholar, the intent of the Framers in the Fourth Amendment was to prevent general warrants. They did this and proscribed unreasonable searches so, whatever their intention, they included more in the amendment. And I maintain that it was to secure the people against unreasonable searches, because that’s what it says.

“I suspect many criminal procedure scholars are drawn to this notion because many crimpro scholars are strongly civil libertarian,” Kerr says. “But the judges see themselves doing something very different; they see themselves figuring out the rules of criminal investigations. As a result, judges normally find most Fourth Amendment scholarship pretty unhelpful.”

He is writing for these judges: “My general approach is to work within the consensus understanding held by the rulemakers and to think about how to apply that understanding rather than to change it.” Kerr characterizes his work as “descriptive: I think this is what the Fourth Amendment means because this is what the Justices and the judges think it means.”

But there’s a problem with this claim: His paper is called “The Case for the Third-Party Doctrine” (emphasis added) and it provides justification for that doctrine. That’s not description. Would you believe it if a lineman in a football game stood up between plays and said, “Y’know, I’m not really in this.”

But before I’m sucked under by the legal-academic vortex Kerr threw in front of me, I should note that he never addresses my challenge to his theory of technological neutrality:

The interplay of the Fourth Amendment and technology is interesting, but I don’t think technological neutrality is a terribly relevant or useful metric for Fourth Amendment doctrine. Since the Fourth Amendment was adopted, technology has certainly shifted the scope of human enterprise. I imagine that in the late 1700’s most everything of deep import to people’s lives—personal and professional—happened in or near the home, so it was natural that the home was a place of high Fourth Amendment protection, and “home” was a useful proxy for “what should be protected.”

Since then, technological changes of all kinds have given us the freedom to take our lives outward. We move around much more within our communities and from one to another; we stay in different places and move our residences much more often; we communicate and transact using new technologies; and our things—both tangible and digital—come to rest many more places than they used to.

What matters is not maintaining “technological neutrality,” but maintaining people’s security in their persons, houses, papers, and effects despite changes in technology. Kept in place, the third-party doctrine will cause changes in technology to undermine people’s privacy. It must be abandoned to preserve the privacy status quo and to restore the level of privacy sought by the Framers through the language they used in the Fourth Amendment.

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