Apr 292010
 April 29, 2010  Posted by  Court, Misc

Orin Kerr responds to a critique of his technology neutrality approach to the Fourth Amendment:

Defense attorney and blogger Rick Horowitz has posted an extended two-part response to my new law review article, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010). His posts are here:

1. Orin Kerr’s Fourth Amendment & The Internet: Foundations

2. What’s Wrong With Orin Kerr’s Technology Neutrality

Horowitz’s major objection to my approach is that he opposes “technology neutrality” as a basic principle of applying the Fourth Amendment to the Internet. As I explain in my article, the basic goal of technology neutrality is to develop Fourth Amendment principles that roughly replicate the function of the Fourth Amendment offline in the online environment. Put simply, the Fourth Amendment should do for cyberspace what it does for realspace.

Read more on The Volokh Conspiracy.

Orin had also had a bit of a back-and-forth on this issue with criminal defense attorney Scott Greenfield on Simple Justice. In many respects, the criticisms seem similar: two criminal defense attorneys taking a position that the Fourth Amendment, as applied in the physical world, is broken, so why would you want to just translate that to the cyber world, with Orin taking the position that Fourth Amendment law does not need to be trashed or to go back to Square One, and that the question he wants to address is how to make Fourth Amendment law equally applicable to new technology.

I’d love to get all of these folks together in one room on a panel to discuss “The Fourth Amendment: Alive and Well, on Life Support, or Stick a Fork in It?”

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