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Abstract

Existing Fourth Amendment law does not protect against law enforcement use of data gathered through the internet either by private companies who actively search their customer’s data and submit evidence of misconduct to law enforcement or from private companies who acquire the data on behalf of law enforcement. In an effort to pursue criminals, courts have permitted Fourth Amendment jurisprudence to develop in a manner that permits sweeping invasions of privacy without any probable cause through the private search doctrine or without any procedural protections through the third-party doctrine. It will require substantial judicial or legislative action to return the level of privacy and security promised by the Fourth Amendment. Current law is split over whether to evaluate technology-based invasions using a human based approach that requires a human to actively participate in the invasions for them to be permissible or a statistics-based approach that permits invasions of privacy so long as there is a high statistical chance that contraband will not be misidentified. Providing citizens with security from the invasion itself has become lost in the debate over the correct way that a citizen’s privacy should be warrantlessly invaded. The Supreme Court should stop the existing doctrines from applying to modern data collection because the existing legal framework was not designed, nor is able, to prevent improper invasions of data. Congress should pass national legislation to limit the ability of private actors to engage in reciprocal relationships with law enforcement where law enforcement receives information that would ordinarily require a warrant. For individual data to be granted the same protections that personal data had prior to the development of modern technology both Congress and the Supreme Court will need to take substantial steps.

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