Law & Tech: Laura Donohue

Description

The Fourth Amendment in a Digital World

Fourth Amendment doctrines created in the 1970s and 1980s no longer reflect how the world works. The formal legal distinctions on which they rely—(a) private versus public space, (b) personal information versus third party data, (c) content versus non-content, and (d) domestic versus international—are failing to protect the privacy interests at stake. Simultaneously, reduced resource constraints are accelerating the loss of rights. The doctrine has yet to catch up with the world in which we live. One potential solution to adapting the Fourth Amendment to the digital age lies in acknowledging the acquisition of uniquely identifiable information as per se a search, and thus presumptively unreasonable absent a warrant. This approach is rooted in the right of the people to be secure in their “persons” as well as “papers” and “effects” against unreasonable search and seizure. The Court’s logic inRiley v. California and interests articulated by the shadow majority in United States v. Jones offer promising ways to evaluate reasonableness by focusing on the type and extent of information being collected, the length of the collection, the combination of the data with other information, and the number of individuals whose privacy is thereby compromised, as weighed against the governmental interests at stake.

Laura K. Donohue is a Professor of Law at Georgetown Law, Director of Georgetown's Center on National Security and the Law, and Director of the Center on Privacy and Technology. She writes on constitutional law, legal history, emerging technologies, and national security law. Her books include The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age (Oxford University Press, 2016); The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge University Press, 2008); and Counterterrorist Law and Emergency Law in the United Kingdom 1922-2000 (Irish Academic Press, 2007). Professor Donohue's articles have been published by California Law Review, University of Chicago Law Review, Stanford Law Review, University of Pennsylvania Law Review, Harvard Journal of Law and Public Policy, and elsewhere. In November 2015, the U.S. Foreign Intelligence Surveillance Court appointed her as one of five amici curiae under the 2015 USA FREEDOM Act. Professor Donohue is a Life Member of the Council on Foreign Relations; an Advisory Board Member of the Electronic Privacy Information Center; and a Member of the American Bar Association's Standing Committee on Law and National Security. She also is a Senior Scholar at Georgetown Law's Center for the Constitution. She obtained her AB in Philosophy (with Honors) from Dartmouth College; her MA in Peace Studies (with Distinction) from the University of Ulster, Northern Ireland; her JD (with Distinction) from Stanford Law School; and her PhD in History from the University of Cambridge, England.

Sponsoring Organization(s)

GLC, ISP