{"version":1,"type":"rich","provider_name":"Libsyn","provider_url":"https:\/\/www.libsyn.com","height":90,"width":600,"title":"The Digital Fourth Amendment with Orin Kerr","description":"The Cyberlaw Podcast is back from hiatus \u2013 briefly!  I\u2019ve used the hiatus well, skiing the Canadian Ski Marathon, trekking through Patagonia, and having a heart valve repaired (all good now!). So when I saw (and disagreed with ) Orin Kerr\u2019s new book, I figured it was time for episode 502 of the Cyberlaw Podcast.  Orin and I spend the episode digging into his book, The Digital Fourth Amendment: Privacy and Policing in Our Online World. The book is part theory, part casebook, part policy roadmap\u2014and somehow still manages to be readable, even for non-lawyers. Orin\u2019s goal? To make sense of how the Fourth Amendment should apply in a world of smartphones, cloud storage, government-preserved Facebook accounts, and surveillance everywhere. The core notion of the book is \u201cequilibrium adjustment\u201d\u2014the idea that courts have always tweaked Fourth Amendment rules to preserve a balance between law enforcement power and personal privacy, even as technology shifts the terrain. From Prohibition-era wiretaps to the modern smartphone, that balancing act has never stopped. Orin walks us through how this theory applies to search warrants for digital devices, plain view exceptions in the age of limitless data, and the surprisingly murky question of whether copying your files counts as a seizure. It\u2019s very persuasive, I say, if you ignore Congress\u2019s contribution to equilibrium. In some cases, the courts are simply discovering principles in the Fourth Amendment that Congress put in statute decades earlier. Worse, courts (and Orin) have too often privileged their idea of equilibrium over the equilibrium chosen by Congress, ignoring or implicitly declaring unconstitutional compromises between privacy and law enforcement that are every bit as defensible as the courts\u2019. One example is preservation orders\u2014those quiet government requests that tell internet providers to make a copy of your account just in case. Orin argues that\u2019s a Fourth Amendment search and needs a warrant, even if no one looks at the data yet. But preservation orders without a warrant are authorized by Congress; ignoring Congress\u2019s work should require more than a vague notion of equilibrium rebalancing, or so I argue. Orin is unpersuaded. We also revisit Carpenter v. United States, the 2018 Supreme Court decision on location tracking, and talk about what it does\u2014and doesn\u2019t\u2014mean for the third-party doctrine. Orin\u2019s take is refreshingly narrow: Carpenter didn\u2019t blow up the doctrine, but it did acknowledge that some records, even held by third parties, are just too revealing to ignore. I argue that Carpenter is the judiciary\u2019s Vietnam war \u2013 it has committed troops to an unwinnable effort to replace the third party rule with a doomed series of touchy-feely ad hoc rulings. That said, Orin\u2019s version of the decision, which deserves to be called the Kerr-penter doctrine, is more limited and more defensible than most of the legal (and judicial) interpretations over the last several years. Finally, we talk border searches, network surveillance, and whether the Supreme Court has any idea where to go next. (Spoiler: probably not.) ","author_name":"The Cyberlaw Podcast","author_url":null,"html":"