When should courts follow legal precedent and when should the law change? This is a debate that underlies this month’s contrary decisions about the constitutionality of government collection of telephone call metadata under section 215 of the USA PATRIOT Act. And despite this week’s dual holdings in favor of the government—on this issue and on the issue of laptop border searches—a judicial consensus may be emerging that the Fourth Amendment must evolve along with technology and government surveillance capabilities. Even in in the ACLU’s defeat in the border search case of Abidor v. Napolitano, the Judge seems to be saying that mass surveillance world requires a more robust Fourth Amendment doctrine than we currently have. This may be a big deal. Read more.
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