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Digital Ubiquity and the Fourth Amendment

By Richard Raysman and Peter Brown
July 02, 2015

Pick up pretty much any 21st century smart phone, tablet or PC, and in minutes, a treasure trove of information about its owner can be uncovered. Missives to a significant other, photos from summer vacation, browsing history that spans years; all of this information, generally considered of the most intimate nature, is easily accessible with even a rudimentary technical knowledge of the device's operating system. Needless to say, unwanted disclosure of such information can be highly damaging.

Perhaps in no situation can such disclosure be as injurious as when the recipient of the information is a representative of law enforcement. Given the protection from an unreasonable search and seizure enumerated in our constitution that give ballast to notions of privacy and autonomy, questions have arisen as to when a law enforcement search can square with these rights, particularly when it is effectuated without the imprimatur of a warrant. That the aforementioned devices now function as virtual warehouses of information has exacerbated the tension between effective policing and privacy rights deemed inseparable from the notion of ordered liberty.

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