Reimagining the Fourth Amendment in the Digital Age

Reilly Stephens, a lawyer at the Liberty Justice Center, recently underscored the need for a modern interpretation of the Fourth Amendment, which was formulated in an era before the advent of computers. The law, he argues, was constructed around assumptions that were largely dependent on resource constraints.

From Physical Surveillance to Digital Tracking

Stephens refers to a 2012 Supreme Court case, Jones, where Justice Alito highlighted the shift in privacy expectations. In the past, it was assumed that anything done in public was open to scrutiny by the police, as there was no expectation of privacy in such spaces. The privacy that Americans enjoyed in public spaces before the rise of computers and affordable connected devices was largely due to resource constraints, Stephens explained. Law enforcement could indeed follow a person, but this required dedicating a police officer's time and effort to tail the individual around the clock. This would only be done if there was a compelling reason to track someone. The issue with modern surveillance tools, according to Stephens, lies in the significantly reduced cost of surveillance.

Modern Surveillance Tools and Their Implications

Modern law enforcement agencies have access to a variety of relatively inexpensive surveillance tools, including facial recognition, drones, cell site simulators, gunshot detection devices, and more. These devices are now frequently utilized by law enforcement with minimal regulation or oversight. The end goal may not necessarily be a surveillance state, but it's undeniable that we are heading in that direction. Stephens, along with his colleague Jeffrey M. Schwab, are attempting to address this issue, starting in Illinois.

Challenging the Use of Automatic License Plate Readers

Earlier this summer, Stephens and Schwab filed a complaint, Scholl v. Illinois State Police, challenging the use of automatic license plate readers (ALPRs) by the Illinois State Police. ALPRs are high-speed, computer-controlled camera systems that automatically capture all license plate numbers that come into view, along with the location, date, and time. This information is then uploaded to a searchable database. The specific program targeted by Stephens and Schwab's lawsuit was initiated through the 2019 Tamara Clayton Expressway Camera Act following the fatal shooting of postal worker Tamara Clayton on a major Illinois highway. The system was purportedly set up to assist criminal investigations and reduce violent crime. By the end of 2022, 300 ALPRs were installed on major Illinois expressways in and around Chicago due to this legislation. That year, the program was also expanded to include an additional 21 counties as well as Chicago’s Lake Shore Drive. The Illinois State Police’s “Automated License Plate Reader Transparency Page” states that data collected through this program are only stored for 90 days.

Violation of the Fourth Amendment?

However, Stephens and Schwab argue that the program constitutes an "unreasonable search" that violates the Fourth Amendment. According to their complaint, the collection and storage of this data allows the Illinois State Police to track anyone who drives to work in Cook County—or to school, or a grocery store, or a doctor’s office, or a pharmacy, or a political rally, or a romantic encounter, or family gathering—every day, without any reason to suspect anyone of anything.

Seeking Limits and Oversight

In a recent interview, Stephanie Scholl and Frank Bednarz, Illinois residents and plaintiffs in the case, expressed their concerns about the program. While not inherently opposed to the use of ALPRs, they are troubled by many aspects of the program. They would like to see limits on the use of data from ALPRs, on how far the data can be sent, how long it can be stored, and who can access it. Both Scholl and Bednarz indicated that if the program continues, they would like to see some kind of warrant process put in place.

The Road Ahead

Stephens and Schwab hope to set standards that would apply generally to surveillance programs and would begin to put limits on them. They believe that the principles of the Fourth Amendment should apply to all technologies. They want the court to say that what the Illinois State Police are doing isn't okay. This, Stephens believes, is the beginning of creating a Fourth Amendment fit for the 21st century.

Bottom Line

The Fourth Amendment was crafted in a time vastly different from ours. With the advent of technology, the lines between public and private spaces have blurred, and the cost of surveillance has plummeted. This raises important questions about the nature of privacy and the extent to which law enforcement can intrude upon it. What are your thoughts on this issue? Do you think the Fourth Amendment needs to be reinterpreted in the light of modern technology? Share your thoughts and this article with your friends. Don't forget to sign up for the Daily Briefing, every day at 6pm.