Digital Civil Liberties and the Translation Problem

Article Source: Oxford Handbook of Criminal Process, Darryl Brown, Jenia Turner, and Bettina Weisser (eds.), Oxford University Press (2019)
Publication Date:
Time to Read: 2 minute read
Written By:

 Michael Washington

Michael Washington



As new surveillance technologies and smartphones become ubiquitous, courts in the United States and Europe struggle to apply traditional principles to protect civil liberties.


Policy Relevance:

Low-cost surveillance will erode the Fourth Amendment unless judges adapt.


Key Takeaways:
  • Criminal procedure rules, which define police powers and individual rights, struggle to adapt to the new world of extensive personal information collection.
  • Courts must consider how protection for civil liberties should be translated into the digital environment; difficulties in applying ancient principles to the Internet, the cloud, location tracking, and encryption threaten civil liberties.
  • Early Supreme Court cases struggled to apply Fourth Amendment privacy protections to telephone wiretaps; in Katz v. United States, Justice Harlan wrote that Fourth Amendment rights would apply where people had a reasonable expectation of privacy.
  • In a Supreme Court case concerning the application of the Fourth Amendment to GPS tracking, Justice Sotomayor notes that cheap surveillance technologies would evade ordinary checks that limit abusive law enforcement practices, such as limited police resources and community hostility.
  • The Court has also considered whether law enforcement may search the contents of a cell phone without a warrant in the course of making an arrest, analyzing the threat to privacy posed by ubiquitous smartphone use.
  • Under the “third-party doctrine,” people have no reasonable expectation of privacy in information given to third parties; in the digital era, as information is often stored by tech companies, the third-party doctrine would exclude most information from the protection of the Fourth Amendment.
  • In Europe, fundamental rights such as data protection and freedom of expression may conflict; such conflicts arise in cases involving the "right to be forgotten."



Neil Richards

About Neil Richards

Neil Richards is the Koch Distinguished Professor in Law at Washington University School of Law, where he co-directs the Cordell Institute for Policy in Medicine & Law. He is an internationally-recognized expert in privacy law, information law, and freedom of expression. He writes, teaches, and lectures about the regulation of the technologies powered by human information that are revolutionizing our society.