Debate (Round 2): Metadata and the Fourth Amendment

Round Two of my debate with Orin Kerr about whether the bulk collection of phone call records is regulated by the Fourth Amendment is now published on the Just Security blog. In this round, I argue that normative considerations, including those associated with bulk data collection, are explicitly part of existing Fourth Amendment jurisprudence. The 1979 case of Smith v. Maryland had not already decided the constitutionality of bulk collection, nor had any other case, yet legal precedent counsels deep understanding, prudence and caution. Where we are considering dragnet-type law enforcement tools, and neither limited budgets nor public oversight serve a limiting role, regulating such indiscriminate police conduct is the very role the Fourth Amendment was designed to play.

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