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The Embattled Constitution$
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Norman Dorsen

Print publication date: 2013

Print ISBN-13: 9780814770122

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814770122.001.0001

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Reading the Fourth Amendment

Reading the Fourth Amendment

Guidance from the Mischief That Gave It Birth

(p.245) 9 Reading the Fourth Amendment
The Embattled Constitution

M. Blane Michael

NYU Press

This chapter examines the Fourth Amendment and whether it can offer any meaningful privacy protection today for personal electronic data. It first reviews some of the history behind the Fourth Amendment's inclusion in the Bill of Rights before discussing the pre-revolutionary mischief that gave birth to the Fourth Amendment—the British Crown's unbridled power of search—and illustrates its broader purpose: to circumscribe government discretion. It then criticizes the Supreme Court's use of an interpretive methodology that fails to take account of the Fourth Amendment's animating history, arguing that this approach is both impractical and cramped and should be abandoned. It also comments on the tradition of using the Fourth Amendment's formative history as a basis for its interpretation and concludes by showing how history can guide us in analyzing a new generation of Fourth Amendment issues that arise in an increasingly interconnected world, such as questions about privacy expectations in personal files stored online, computer search warrants that present the risk of being executed as general warrants, and potential threats to privacy from government data mining programs.

Keywords:   privacy protection, personal electronic data, Fourth Amendment, Bill of Rights, Supreme Court, computer search warrants, privacy, data mining

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