SMU Law Review
Abstract
The Fourth and Fifth Circuit’s split calls for reexamination of the Fourth Amendment search framework—a framework that revolves around one’s reasonable expectation of privacy. The underlying question motivating this Comment is how to account for individual privacy in a world where, arguably, old notions of privacy no longer exist. And ironically the answer lies in shifting the focus from privacy to property. The circuit split over geofence searches is a symptom of a larger problem: The current Fourth Amendment search framework is unworkable in the digital age.
Thus, this Comment has dual objectives. The first objective is analyzing the geofence circuit split. Put simply, geofence searches occur when law enforcement compels a company to provide the location data of all known individuals within a predetermined area. At its core, geofence searches are a type of data search. One’s data gives rise to an undeniable privacy interest because data communicates intensely personal things about a person. At the same time, there are undeniable law enforcement interests in location data: identifying and apprehending suspects and criminals. And if companies can sell this data to other corporations, or even to foreign governments, then it is likely unfair to ban our own government from ever having access to personal data. By focusing on privacy, judges are forced to make these value-based determinations, whereas a property-based framework roots Fourth Amendment protection in concrete legal principles.
The problems present in the geofence issue serve as a premise for this Comment’s second objective: building a Fourth Amendment framework that is both faithful to its original meaning and applicable to current surveillance technologies. This is accomplished by reverting back to a property-based Fourth Amendment search test. It is important to note that this Comment will not analyze the constitutionality of geofence warrants. Instead, this Comment will focus solely on the threshold search question.
Reconsideration of the Fourth Amendment is vital in the digital age as technology will continue advancing, resulting in new ways to record, collect, and analyze personal data. In other words, the implications of this issue are far-reaching and extend beyond the geofence context. At the very least, the purpose of this Comment is to encourage the legal community to critically assess both the impact that digital technologies have on interpreting the Fourth Amendment and whether a privacy test is the best method for securing our Fourth Amendment right to be free from unreasonable searches.
Recommended Citation
Mary Katherine Smith,
Protect My Property, Not My Privacy!: How a Recent Circuit Split Illustrates the Need to Reinstate the Traditional Property-Based Fourth Amendment Framework,
78
SMU L. Rev.
1097
(2025)
