One of the most important goals of the Constitution drafted in Philadelphia in 1787 was to prevent the United States government from repeating the abuses of power by the King and his agents that had been denounced in the Declaration of Independence in 1776. The Constitution achieved ratification in 1789 in large measure based on a promise that the First Congress would propose amendments to promptly add a Bill of Rights to further safeguard against tyranny. The politicians of the day kept their word to one another, and ten of the twelve proposed amendments were swiftly ratified and took effect in 1791.
Some of the provisions in the Bill of Rights came directly from the nearly thirty grievances in the Declaration, such as the right to trial before a local jury and the prohibition on quartering troops in private homes. However, other provisions sought to more specifically delineate the abuses of power that the new United States government would be prohibited from repeating.
One of these was a clause explicitly repudiating the “general warrants” used by the King’s agents, which essentially authorized them to pursue a given investigation by looking anywhere for anything – the kind of inquiry that today we would call a “fishing expedition.” Instead, the Fourth Amendment commands that search warrants must be limited in scope by “particularly describing” not only where the government agents want to search but also what they are looking for and must be based on a showing of “probable cause” that the described search may be fruitful.
Until recently, the discrete objective of abolishing general warrants had taken on much-reduced importance in the U.S. Supreme Court’s the Fourth Amendment’s decisions compared to the broader prohibition of “unreasonable searches and seizures” by government agents. Even two hundred years later, enforcing the particularity and probable cause requirements for inspections of physical places and physical evidence – whether objects, documents, or other tangible items – had not changed all that much.
In our new age of digital data, however, the prospect of governmental searches that are functionally equivalent to the old general warrants has become very real. Everyday life in the internet era generates vast quantities of information, and it is often retained indefinitely, too. The information about us on our devices, in the cloud, and incorporate data archives is both quantitatively and qualitatively different from anything that ever existed in our history. When government agents access this information and data-mine it, they can piece together a highly detailed mosaic of a person’s life – in a way that would have been impossible even in 2001 or 1991, much less in 1791.
Fortunately, the Supreme Court has begun to confront this prospect directly. In 2014, the Court ruled that police need a search warrant, limited by particularity and probable cause, to search the digital data contained on the smartphone of any person arrested for a crime. Earlier this year, the Court also required a search warrant for police who want to access cellular service providers’ records to track down a phone’s cell-site locations at certain days and times. Eventually, perhaps soon, the Court will have to consider how the Fourth Amendment applies to situations such as internet service provider records of the websites visited from a person’s devices or the data-mining of an individual’s bank records, credit card statements, or e-commerce transactions. When they do, hopefully, the Court will continue to prohibit searches that closely resemble general warrants, keeping alive the spirit of the original Bill of Rights.
Professor Priester has taught and written scholarship in criminal law and procedure for over fifteen years. His latest article is A Warrant Requirement Resurgence? The Fourth Amendment in the Roberts Court, 93 ST. JOHN’S L. REV. ___ (forthcoming 2019, available at https://ssrn.com/abstract=3253108)