Protecting the Fourth Amendment in the Information Age: A Response to Robert Litt

Tags: 2010s Amendment IV Case Law

Authors: Cohn, Cindy

Published: 2016

URL: https://www.yalelawjournal.org/pdf/11.CohnFinalPDF_d5acfu8u.pdf

Abstract: On July 27, 2016, the Yale Law Journal Forum published a short essay that agrees in part and disagrees in part with Robert Litt’s, General Counsel of the Office of the Director of National Intelligence, “new analysis for the Fourth Amendment in the Information Age”. The author rejected Litt’s proposal that the “reasonable expectation of privacy” test “should simply be eliminated”, and analyzed why Litt’s proposed balancing test is not a suitable replacement. The author believes “Litt’s formulation misses the central goal of the Fourth Amendment to prevent general searches.” The author believes instead that the correct starting point for a new Fourth Amendment analysis is the Necessary and Proportionate Principles, not the reasonable expectation of privacy test.