Abstract

When the police use new forms of powerful surveillance technology to peer into the intimate details of private life, a bare search warrant is not enough to protect Fourth Amendment rights. A search warrant today requires the same triple of protections it did at the time of the Founding: judicial review, probable cause, and particularity. For at least 60 years, courts have added tailored requirements to this list of protections, sometimes referred to as “superwarrant requirements.” They have imposed, for example, time limits on ongoing searches; minimization requirements (i.e., obligations to filter) to protect the haystack of data when the police are looking for a few needles; and necessity rules, which permit some forms of surveillance only as a last resort.

Some judges and most scholars have tended to treat superwarrant requirements as uncommon, unusual, and best left to legislation. On the contrary, courts have added new superwarrant requirements at a steady pace over time, meeting the specific and invasive characteristics of technologies such as wiretaps, hidden video surveillance, and searches through massive hard drives. They have recognized that without superwarrant requirements, search warrants would be indistinguishable from the general warrants that helped spark the American Revolution and motivated the Founders to enact the Fourth Amendment.

This Article reveals the unappreciated ordinariness of superwarrant restrictions. It argues that recent technological developments demand the expanded use of preexisting and new superwarrant requirements. To protect our civil liberties in the face of new forms of location tracking, new methods of probing our relationships and innermost thoughts, and powerful new forms of artificial-intelligence-fueled prediction and inference, we need much more protection than what traditional search warrants provide. 

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