Cornell Law Review Volume 102 Article 1 Issue 3 March 2017 The mS art Fourth Amendment Andrew G. Ferguson Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Andrew G. Ferguson, The Smart Fourth Amendment, 102 Cornell L. Rev. 547 (2017) Available at: http://scholarship.law.cornell.edu/clr/vol102/iss3/1 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized editor of Scholarship@Cornell Law: A Digital Repository. For more information, please contact
[email protected]. \\jciprod01\productn\C\CRN\102-3\CRN304.txt unknown Seq: 1 28-MAR-17 9:53 THE “SMART” FOURTH AMENDMENT Andrew Guthrie Ferguson† “Smart” devices radiate data, exposing a continuous, inti- mate, and revealing pattern of daily life. Billions of sensors collect data from smartphones, smart homes, smart cars, med- ical devices, and an evolving assortment of consumer and commercial products. But, what are these data trails to the Fourth Amendment? Does data emanating from devices on or about our bodies, houses, things, and digital devices fall within the Fourth Amendment’s protection of “persons, houses, papers, and effects”? Does interception of this infor- mation violate a “reasonable expectation of privacy”? This Article addresses the question of how the Fourth Amendment should protect “smart data.” It exposes the grow- ing danger of sensor surveillance and the weakness of current Fourth Amendment doctrine. The Article then suggests a new theory of “informational curtilage” to protect the data trails emerging from smart devices and reclaims the principle of “informational security” as the organizing framework for a digital Fourth Amendment.