Today, we’re interviewing one of the nation’s foremost Fourth Amendment scholars, Professor Orin Kerr of George Washington University. Professor Kerr has written extensively on the law of national surveillance, and how the Fourth Amendment’s warrant requirements apply under current law and practice to national security investigations. Since the surveillance revelations of last year, his research has become a touchstone for people on both sides of the surveillance debate.
Professor Kerr: what got you interested in Fourth Amendment law in the first place?
It was an accident. I was hired as a lawyer in the Justice Department’s Computer Crime and Intellectual Property Section. They needed someone to write a manual on computer crime investigations. I agreed to write the manual, and it required me to become an expert in Fourth Amendment law.
2. In your forthcoming Stanford Law Review article, “Applying the Fourth Amendment to the Internet: A General Approach“, you argue that “technology may allow the state to watch all of its citizens rather than just a few. As much as I would oppose such a development, the Fourth Amendment doesn’t provide the tools to stop it.” How would you consider it appropriate for such surveillance to be stopped?
The legislature should prohibit it.
3. You argue in the same article for courts to adopt a distinction between protecting content searches with warrants and having metadata searches be not protected with warrants. If metadata searches do not “particularly describe” the “persons” whose metadata is being collected, but instead are programmatic in nature, how can they be considered to comply with the Fourth Amendment?
They comply with the Fourth Amendment because the collection of metadata is not a Fourth Amendment search under the Supreme Court’s decision in Smith v. Maryland.
4. You have also defended the notion of “equilibrium adjustment”, where changes proposed to Fourth Amendment law should not significantly change the Fourth Amendment’s allocation of power between the state and the individual. This appears to encode a normative assumption that the current equilibrium permits the state about the right amount of power to search. If that is true, why is it true?
I think balance is essential. We wouldn’t want to live in a world with no limits on government power. And a the same time, we wouldn’t want to live in a world where the government has no power to solve crimes and catch criminals. I don’t think the current balance is necessarily correct. But I do think the traditional balance of the Fourth Amendment is in the range of plausible balances that the law could strike. It is centuries old and seems to work relatively well, and it carves out some private spaces while giving the police ways to investigate crime.
5. If there’s any Fourth Amendment case you would like to have come out differently, what would it be and why?
I wish the Supreme Court would overturn Davis v. United States (2011), a recent case eliminating the exclusionary rule when officers relied on later-overturned precedent. I think Davis is going to have very harmful long-term effects because it will limit the ability of the courts to overturn erroneous cases that construed the Fourth Amendment too narrowly. Full disclosure: I argued the Davis case for the defendant, and I lost.
6. What books do you recommend to students interested in understanding the Fourth Amendment as it relates to surveillance?
I wouldn’t start with books. There are tons of great law review articles available for free download at SSRN.com, so I would start there. But I’ve been planning to write a book on the Fourth Amendment and technological change, so maybe I’ll have a book to recommend in a year or so.
Thank you, and we look forward to talking with you again.