A Digital Fourth Amendment

The iPhone is your enemy.

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UC Berkeley law professor Orin Kerr joins David and Sarah to explain how Fourth Amendment jurisprudence applies to a digital age. Do you have an expectation of privacy online? Can terms of services null your right against unreasonable searches and seizures? But first Sarah generously offers David time to rant about certain legal takes surrounding Trump’s most recent indictment. Plus:

-David’s (recent) paintball career

-What is general public use?

-Are pole cameras unconstitutional?

Show notes-

–Section 241 and the First Amendment in the Duke Law Journal

–Professor Kerr’s profile at Berkeley Law

–Professor Kerr’s Twitter profile

–Professor Kerr’s writing for The Volokh Conspiracy

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Comments (90)
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  1. Avatar photo
    Philbnichols

    Hey, Sarah is Gur, you can’t fit an osprey into a cereal box

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  2. Ready for the Meteor

    In regard to the magical powers ascribed to the iphone for seeing through tinted windows - any imaging device, placed in a relatively close position to the glass, with shielding to block ambient light, can see through tinted glass...which includes your eyes, if you cup your hands around your face and get fairly close to the window. (Phones do this easily because they have flat bodies, with the camera view perpendicular to the body plane.) Tinted glass doesn't stop light, it attenuates it, thereby reducing its intensity too far below outside light to be distinguished. Reduce the ambient light, and the dim view can be discerned.

    There are, however, other technologies that can be used in lieu of, or in conjunction with, tinted glass to obscure the interior of a car in a manner that is not susceptible to cupped hands, android phones, or even magical iphones. Curtains, for instance, or one of those opaque folding sun reflectors...

    To me, it may be bad taste, but it doesn't seem like a constitutional invasion to look into car windows. If you REALLY don't want people looking in your car, you should have to put more effort into it than getting tinted glass. I think it's INSANE to consider looking into car windows in a public place as "search and seizure".

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  3. AMDalTX

    If I were to get a forearm tattoo, it would probably be Sarah's quote.

    "You can get a snake into a cereal box; a chipmunk into a cereal box. Everything goes into a cereal box."

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  4. John K. Orn

    I'm not going to read the comments to find out that someone has inevitably already made this suggestion, but I will post it anyways.

    David, you were so close when you named the book "The iPhone is Your Enemy," but there's an even better title out there: "Your iPhone is a Snitch." I can even imagine the cover for the book: a cartoon iPhone in a cartoon red bandana having a conversation with a cartoon iPhone in a cartoon cop hat. Have fun with that image.

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  5. Avatar photo
    Bill Dyer (aka Beldar)

    I kid you not, Sarah Isgur, Esq. & Senior Editor: When you whispered the words "the jury instructions" to Mr. French in this podcast, I quite literally leapt from my desk chair into the air with both fists clenched and shaking skyward, shouting "YES!"

    (This startled my one-year-old Husky, Tux, who was sleeping with her head upon my foot. She has forgiven me.)

    Prof. Kerr is a fine guest and Fourth Amendment law a worthy diversion when we're in need of distraction.

    But the first 30 minutes of this show lived up to the tease Mr. Goldberg gave it at the end of his Remnant episode with Andrew McCarthy, since you are indeed the people who can "discuss 18 U.S.C. this and 18 U.S.C. that and all that lawyer-statutey sort of stuff." Which the U.S. District Judges in both the Florida and DC cases will be working from when they write ... the jury instructions! So, yeah. Promise kept by Dispatch Media.

    Suggestion: Commission someone to write, for publication at Dispatch Media and the vigorous commentary and scholarship that might in turn spark, the sort of draft jury instructions Smith's team should be asking for in each case, and the competing set of instructions that Trump's team should be asking for in each case.

    Thereafter, whenever you're discussing likely evidence and legal theories, you can say, "The reason this is relevant is clear when you look here at Instruction No. 3 on Count 37 (False Statements in violation of 18 U.S.C. § 1001), where 'knowingly and willfully' is defined to mean ...."

    And you could hyperlink it. And also embed cross-hyperlinks to the charging documents (so Count 37 is a click away).

    This could be a tool to literally get people on the same [web]page for purposes of productive discussion!

    Because it IS ALL ABOUT THE JURY INSTRUCTIONS — and yes, everything else of importance in both federal criminal cases ultimately gets subsumed into those.

    I'd give this podcast five stars even without the cereal box being serially carried in cars for snake rescues.

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  6. Sean Smith

    RE the big "intent" morass of the Trump indictment relating the events of 1/6/21--I seem to recall from the foggy and increasingly distant memories of law school that there was a uniform jury instruction somewhere that said jurors could (but of course weren't required to) infer that someone intended the natural and probable consequences of his actions. Would that not be a good way to cut this Gordian knot in half, or am I confused somewhere?

    Secondly, with regard to the interplay of technology and the 4A, doesn't the "reasonable expectation of privacy" standard still work perfectly well, regardless of the technology used to do the snooping? Granted opinions will differ on this. For instance, I always thought the case from a while back involving Newt Gingrich on a cell phone was wrongly decided. The court held he had no reasonable expectation of privacy when conversing on a cell phone because his cell phone signal travels through public airwaves and he should have known it could be intercepted. The fact that you know something is possible doesn't render your expectation that your phone conversation isn't being listened in on unreasonable. What about drones overflying fenced-in yards? As a libertarian privacy hawk, I'm probably more inclined than others to think a person has a reasonable expectation of privacy in ANY fenced-off or walled-off space on private property, whether it has a roof or not. While it's true that we've had aviation for over a century, thus any aircraft could look down into your back yard at any time, that doesn't negate your expectation and whether or not it's reasonable. Certainly if someone got up on a tall ladder and looked down into your back yard, I can't imagine too many sane people would argue that he's not violating your privacy or reasonable expectation thereof. So what difference does it make if he does the same thing using a remote controlled aerial vehicle? You fenced in your yard for privacy, you expect to get that privacy, and that expectation is reasonable.

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  7. Avatar photo
    Joe Delanis

    I don't know how to email Sarah and/or David, so I guess I'll post my question -with a preface - here. It's in regard to Trump's indictment for what I'll call "trying to steal the 2020 election":

    Donald Trump repeatedly and persistently articulated a conspiracy theory for which there was zero credible evidence to substantiate his claim.

    I'm talking, of course, about his claims that President Barack H. Obama wasn't born in the United States.

    Would there be any evidentiary value to his articulation of the "birtherism" BS, for either the defense or prosecution in "stealing the election" case?

    Let's say there's evidence Donald Trump *knew* - or reasonably believed - President Obama was born in the US, at the time he was spreading that ridiculous nonsense.

    Even though there was nothing criminal about him making those silly and shameful allegations, could such evidence still be admissable as pattern of conduct evidence to show Trump has a habit of knowingly making false, conspiratorial claims? And thereby bolstering the prosecution's assertion that Trump knew good and darn well that his claims about 2020 were a similar kind of horsepucky?

    Conversely, if there's evidence Donald Trump sincerely believed - in spite of the lack of evidence or even in contradiction to the available evidence - that Obama *was* born in Kenya, would that be admissible or useful for the defense, to demonstrate he was prone to believing outlandish conspiracy theories and, therefore, sincerely believed the 2020 election had been stolen from him?

    I apologize if you've already addressed this, or if it's a stupid question. In any case, thanks for your time!

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    1. Avatar photo
      Bill Dyer (aka Beldar)

      Even in the DC case, Smith's team has been quite careful to focus on a relatively short time-frame — from Election Day 2020 to January 6, 2021. The conspiracy alleged to have been agreed upon, undertaken, and advanced during those few weeks is incredibly broad geographically, and the universe of facts which might tend to bear on Trump's state of mind during those few weeks is likewise incredibly broad.

      But neither federal judge is going to be willing to permit either Smith's team or Trump's to wander far before the relevant time-period, and there are sufficiently different circumstances to make any inferential evidence about Trump's propensities too attenuated.

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  8. Avatar photo
    Aylene Wright

    Welp, seems the Trump indictment and digital Fourth Amendment issues have now ... collided!

    https://www.politico.com/news/2023/08/09/special-counsel-obtained-search-warrant-for-donald-trumps-twitter-account-00110484

    According to this article, Smith actually did get a warrant for Trump's Twitter account, but he also got a nondisclosure order, meaning Twitter couldn't inform Trump of this.

    But Twitter, under Musk, fought the order and was fined.

    “Although the company did not question the validity of the search warrant, it asserted that the nondisclosure order was facially invalid under the First Amendment,” Pan noted. “Twitter informed the government that it would not comply with the warrant until the district court assessed the legality of the nondisclosure order."

    Now, I get the impression that Professor Kerr is no Trump fan, but if he were to follow the principles he expounds in this episode, wouldn't he be inclined to side with Twitter and Trump here? Although he may disagree with the framing of this being a First Amendment issue.

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  9. Aaron

    Sounds like Sarah and David are tiring of arguing over the corrupt intent debate.

    In fairness I feel like they have been addressing a bit of a straw man argument- that the government doesn't need to prove corrupt intent. The argument is actually, the facts we all know already prove intent.

    1) Trump is not insane. 2) There was no good faith reason to believe he won. 3) He has a history of pretending to believe self serving things.

    Hypo: Someone kills a person known to be personal enemy. In his defense against the charge of Murder 1, he argues the victim is actually a Skrull impersonating his enemy. If the killer is not insane, he is in effect confessing his intent.

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  10. Avatar photo
    Markdavis918

    sarah, My wife had a good point on that iphone to look into a tinted window. She asked me how it was done? I mean by using the camera, or Dumb me thought you placed the phone against the glass and simpley looked through the phone. So please explain to a boomer how that was done, THanks?

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    1. Avatar photo
      Joe Delanis

      I actually think that's a material question.

      I can't cite the case law off the top of my head, but actually making contact with the car (e.g., putting your hand on the hood to see if it's warm, to tell if the car's been running recently) can, in fact, constitute a search.

      I know the 6th Circuit held that chalking tires of cars parked upon a public roadway (for the purpose of parking/traffic enforcement) was considered a search and was found to be an unconstitutional practice (***side note: this case can serve as an example of the prudence of qualified immunity - if Parking Enforcement employees had always done it, because it never occurred to them the conduct would be a PC-less "search," to be able to hold them *personally* liable once the 6th Circuit finds for that plaintiff is kind of unfair).

      So if the officer placed the phone up against the glass, for the purpose of e.g. shining the flashlight thru the window, I think that could be a search under 4A case law. Whereas if the phone was just held up, and the flashlight shined thru, then that would not be a search and likely considered "plain view."

      But Sarah and David would be answer that more authoritatively than I could.

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