Supreme Court nominee Neil Gorsuch has a decidedly conservative record on the bench, but his view of the Fourth Amendment’s protections against unreasonable searches has been relatively moderate, the New York Times reports. Orin Kerr, a George Washington University law professor who specializes in Fourth Amendment and technology issues, said Gorsuch’s opinions suggested that he was “not a knee-jerk vote for the government.” That is important because the Supreme Court has yet to resolve many questions about how the Fourth Amendment applies to 21st-century communications.
“The history of the Fourth Amendment is about physically breaking into houses and taking away papers, and the big question is how do you apply that physical concept to a virtual world,” Kerr said. “Courts are struggling with that, and there is a lot of wiggle room in how to do it.” TheIntercept.com this week published a leaked version of an FBI operational guide that includes internal rules for emerging investigative technologies that raise Fourth Amendment issues. The guide tells agents not to introduce in court evidence from using so-called Stingray devices to locate cellphones’ owners, adding that their use to find people inside buildings “could be deemed to constitute a search under the Fourth Amendment.” On the appellate bench, Gorsuch has dealt with Fourth Amendment cases that raised novel technology issues. A 2013 case raised the question of what should happen if police officers erroneously stopped someone because of faulty technology, then discovered evidence of a crime. An officer stopped a car because a license plate database that was known to be unreliable erroneously indicated that its plate was invalid. The officer then found drugs in the car. Gorsuch said the officer’s use of the flawed technology made the search sufficiently unlawful to block prosecutors from using the drugs as evidence.