Kerr on “Data Scanning and the Fourth Amendment”

Orin S. Kerr, Data Scanning and the Fourth Amendment.

Solum’s Download of the Week for March 23, 2025. Available on SSRN.

This is a synthetic academic workshop generated using enTalkenator.

Abstract: “A crucial question of Fourth Amendment law has recently divided courts: When government agents conduct a digital scan through a massive database, how much of a "search" occurs? The issue pops up in contexts ranging from geofence warrants and reverse keyword searches to the installation of Internet pen registers. When a government agent runs a filter through a massive database, resulting in a list of hits, is the scale of the search determined by the size of the database, the filter setting, or the filter output? Fourth Amendment law is closely attuned to the scale of a search. No search means no Fourth Amendment oversight, small searches ordinarily require warrants, and limitless searches are categorically unconstitutional. But how broad is a data scan? 

This essay argues that that Fourth Amendment implications of data scans should be measured primarily by filter settings. Whether a search occurs, and how far it extends, should be based on what information is exposed to human observation. This standard demands a contextual analysis of what the output reveals about the dataset based on the filter setting. Data that passes through a filter is searched or not searched depending on whether the filter is set to expose that specific information. The proper question is what information is expressly or implicitly exposed, not what raw data passes through the filter or the raw data output. The implications of this approach are then evaluated for a range of important applications, among them geofence warrants, reverse keyword searches, and Internet pen registers.”