Fourth Amendment rights under the best of circumstances can be complex to apply. Throughout history there are many instances where these rights have been challenged. The most prevalent and well publicized are usually those involving the government and/or law enforcement. These days, with the threat of terrorist attacks looming around every corner, the “need” to suspend some constitutional protections under the Fourth Amendment seems inevitable. Case in point is the ongoing battle between the Federal Bureau of Investigation (FIB) and Apple. The upcoming paper addresses this case and other conflicts and issues within the context of law enforcement and social justice. Examining the current role of law enforcement in protecting the rights of the individual in light of new challenges created by the social media requires a reassessment of both those rights and law enforcement responsibilities under the Fourth Amendment.
A summary of Fourth Amendment rights in Root (2001) indicates the issues presented to law enforcement in most ordinary circumstances as often unrealistic and unsupported by legal arguments. This is particularly relevant in the area of theoretical assessments of the various reasons why people commit crimes, and also precisely who these individuals may be. This aspect of Fourth Amendment rights and their relationship to diversity are extrapolated byTyler, Boeckmann, Smith, & Yuen (1997). As suggested by Strategy Policy Brief (2009), the theories and suggested categories behind causes of crime are just as likely to suggest risk factors among individuals to law enforcement as the actual fact that a person subject to these risks is likely to be suspect. The implications for privacy and legal suspension of Fourth Amendment rights under said suspicions are obvious. That these causes and categories are taken seriously by law enforcement is worth of examination in terms of social justice.
Such theories may also be applied indiscriminately and certain stereotyping can evolve that places individuals under undo suspicion and thus the likelihood of privacy invasion. Case in point, the fine line currently walked by law enforcement and “suspicious” behavior by individuals perceived as Middle Eastern. Regarding a person’s use of social media, this activity is particularly subject to scrutiny as it has been noted that much of the communication between operatives takes place on social media. Yet the prospect of singling out a person prejudicially based on ethnicity seems not only abhorrent to our best instincts when it comes to fairness and certainly, but certainly flies in the face of legislation prohibiting racial profiling. The question then becomes: how much privacy can anyone expect when engaging in social media? Are the expectations of privacy more acute on cell phone technology than on the general social media sites? It would seem so when looking at the Apple case.
As Beti (2014) suggests,”The Fourth Amendment and technology have always had a volatile relationship. As technology advances, the courts and scholars have struggled to update privacy protection (p.1810). Kerr (2012) clarifies the application of what is termed the mosaic theory as applied in United States v Jones as a prime example of how the Constitution can be reinterpreted in the technological evolutionary state of modern society. As Kerr writes speaking of social media, “The more it becomes a space for developing and maintaining intimate relationships, the more flexible Fourth Amendment jurisprudence must become” (p. 311). What Kerr proposes as an acceptable alternation or opinion is the fact that this new broader interpretation allows for both appropriate information gathering for investigative purposes, as well as a certain expectations of privacy in social networking communication.
It is clear as we examine both the aspects of law enforcement and its responsibility toward social justice and the tenets of our constitutional rights, that a fresh look at old interpretations is in order. We are dealing now with an unknown entity in social media. As such, old ways of interpreting what the individual’s rights are in relationship to public safety and crime fighting must be addressed as possibly no longer relevant.