EPIC fights to ensure that our constitutional rights are not eroded by new technology, primarily by participating as a friend of the court in important Fourth Amendment cases. The rapid advancement of telephone technology has been a significant challenge to Fourth Amendment law. The Constitution says that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Supreme Court has struggled with the question of how the Constitution applies to new technological advances.
In a 1976 case called Smith v. Maryland, the Court upheld a robbery conviction when police worked with the telephone company to collect a few days’ worth of numbers dialed from the victim’s home. The court ruled that the use of this “almost Orwellian” technology did not violate the Fourth Amendment, even though it involved the private property of someone other than the victim.
The Court has been reluctant to rethink Smith in light of new developments in telephone technology, but this year’s cases of Wayfair and Carpenter may change that. In both cases, the majority found that a constitutional ruling was necessary to re-align the law with technological disruption.
The justices will be asked to take a leap of imagination, as Justice Brandeis did in his famous dissent on wiretapping, to understand the full implication of modern virtual technology. And the decision they make could change everything.
