I have been posting on Chatrie v. United States, the Supreme Court's geofencing case to be argued on Monday. In this post, I wanted to talk a bit on why the search question is particularly hard.
The Supreme Court has long struggled to explain what makes government action a "search" of an individuals' "persons, houses, papers, and effects." The Fourth Amendment is generally understood to have been enacted in response to a series of disputes in the 18th Century, like Entick v. Carrington and Wilkes v. Wood, which were about what kinds of warrants were permitted to conduct a physical search. But a central challenge of modern Fourth Amendment "search" law has been that technology allows for so many equivalents of physical searches that do not involve actual physical intrusion.
There is broad agreement that the Fourth Amendment needs to extend beyond actual physical intrusion: If it didn't, the role of the Fourth Amendment would diminish over time in a world of wiretapping, thermal imaging, and network-stored records. The hard question is, what's the test for how to make sure the Fourth Amendment maintains that role over time, preserving its protections as technology changes?
