Nag: Digital privacy and the Fourth Amendment

Uriah Barzola

A Flock Safety camera using AI tools to read license plates at the intersection of 14th and Willamette (Uriah Barzola/Emerald).

Over Memorial Day weekend, 105 undergraduate, graduate and law students convened at Washington State University in St. Louis to discuss the shortcomings of the U.S. Constitution and imagine creative solutions to make laws better. The last official federal constitutional convention convened in 1787, and leaders have yet to meet officially since then.

From the 20 submitted amendment proposals, three of them aimed to address the lack of protections for digital privacy. When drafting the Constitution, the Founding Fathers could not have anticipated the rapid expansion of surveillance and data collection, and the Fourth Amendment desperately needs to include language to protect individuals from new forms of government overreach.

Under “Riley v. California” (2014), the Supreme Court unanimously ruled that police generally must obtain a warrant to access records and data from a private individual’s phone. Under “Carpenter v. United States” (2018), the Supreme Court ruled that courts also need to obtain a warrant to access historical data. These rulings have been in line with traditional Fourth Amendment interpretations to keep private individuals’ information and property safe from unreasonable searches and seizures.

However, one glaring loophole remains, weakening all aforementioned protections against government overreach. The third-party doctrine under the Fourth Amendment rules that individuals lose their reasonable expectation of privacy in any information they consensually share with third parties. This has been used to refer to bank…

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