Are Warrants Enough?
Why Fourth Amendment Warrants Can't Meet the Moment
This year, in Chatrie v. United States, the U.S. Supreme Court will decide whether geofence warrants are valid under the Fourth Amendment. The geofence warrant at issue in the case was one that allowed the government to obtain account data from Google of hundreds of millions of users. It’s the equivalent to a digital dragnet, which I’ve long argued contravenes the core purpose of the Fourth Amendment. The Framers of the Constitution hated dragnet searches . . . actually, to be more precise, HATED them.
If the Supreme Court doesn’t find geofence warrants to be invalid, then it’s hard to imagine much left of the already-desiccated Fourth Amendment. But Chatrie is just the tip of the iceberg. Regular warrants under the Fourth Amendment—those that are properly circumscribed based on particularized suspicion—are also not strong enough for our times.
We’re witnessing an unprecedented rise of authoritarianism in the United States. I’ve long argued that warrants are an effective way to protect privacy and also balance interests in law enforcement. But now I don’t think warrants are enough to provide the kind of protection against government power that is necessary.
1. Big gaps in Fourth Amendment protection with no adequate alternatives.
First, there remain many large gaps in Fourth Amendment protection due to myopic and antiquated U.S. Supreme Court interpretations of the Amendment. For example, under the Third-Party Doctrine, there is no reasonable expectation of privacy in records held by third parties. In 2018, the U.S. Supreme Court finally took a step back from the third-party doctrine in Carpenter v. United States, 138 S. Ct. 2206 (2018) by holding that historical cell phone geolocation data was so extensive that there was a reasonable expectation of privacy in that data. But the Court refused to overrule the Third-Party Doctrine, and lower courts have mostly been weak about applying Carpenter to other forms of data.
The bottom line is that there are many areas where there is no Fourth Amendment protection. Recently, the New York Times reported that “Google, Reddit, Discord and Meta, which owns Facebook and Instagram, have received hundreds of administrative subpoenas from the Department of Homeland Security, according to four government officials and tech employees privy to the requests. . . . Google, Meta and Reddit complied with some of the requests, the government officials said.”
I’ve long argued that the Third-Party Doctrine should be abolished and warrants should be required in more situations involving government data gathering and surveillance.
Why is this an argument against warrants when I’m arguing for more warrants? Because our system is too centered around warrants. Far too often, warrants are the only form of protection. Or, if Fourth Amendment warrants aren’t required, there are sometimes statutory protections, but many are quite weak.
Right now, decisions that apply the Fourth Amendment warrant requirement seem like wins, but this is hardly a win. It’s just a point scored in a long game.
A system that relies primarily on the Supreme Court’s muddled Fourth Amendment jurisprudence for protection, without more, is quite troublesome. There must be a stronger more durable protection that isn’t at the mercy of convoluted caselaw.
2. Warrants can’t help when there are fundamental disputes over what constitutes a crime.
Imagine if the Fourth Amendment were to apply more broadly. Imagine if the Third-Party Doctrine were to be overruled. I’d be dancing in the streets, but then the cold hard reality would set in. We’re living in a world where there are fundamental disputes over what constitutes a crime.
The federal government is increasingly viewing any protest or criticism as a crime. States can now criminalize abortion. And once something is a crime, the government can readily obtain warrants to investigate the crime. Warrants are premised on requiring the government to justify a particular circumscribed search to investigate a crime. If we agree that the crime is bad, such as armed robbery, then warrants are a way to allow the government to investigate but prevent overreaching or unjustified searching. If the underlying crime is something that we don’t think should be criminalized, then a search is problematic even when the government has probable cause to look for evidence.
As Aziz Huq and Rebecca Wexler argue, “Because so much patient activity occurs online, or alternatively generates a digital data trail, the antiabortion prosecutor (or, indeed, civil plaintiff under certain circumstances) is likely to begin their search not solely with eyewitness interviews or physical evidence but also by looking for the electronic traces of patient search.”
3. Warrants are rubber stamps in practice.
Another big problem with warrants is that they’ve become rubber stamps. Paul Ohm has long contended that “warrant and probable cause requirements are often quite toothless requirements that the government will be able to meet with ease.”
A recent empirical study by Miguel de Figueiredo, Brett Hashimoto, and Dane Thorley revealed that “Ninety-eight percent of warrant reviews eventually result in an approval, and over 93% are approved on first submission. Further, we find that the median time for review is only three minutes.” Even worse, “one out of every ten warrants is opened, reviewed, and approved in sixty seconds or less.”
Warrants are not supposed to just be paperwork to dress up whatever the government wants to do. They must serve as a major check on government power.
As Andrew Guthrie Ferguson argues in his great new book, “No matter how law-abiding or upstanding you consider yourself, the safeguards built into our legal system—search warrants, judicial oversight, concepts like probable cause—are too weak to protect us from the self-surveillance systems we are building.” [Read the first chapter online]
4. The federal government is ignoring the entire Fourth Amendment warrant process.
Recent news has revealed that the federal government might be ignoring the warrant process altogether. According to the AP: “Federal immigration officers are asserting sweeping power to forcibly enter people’s homes without a judge’s warrant, according to an internal Immigration and Customs Enforcement memo obtained by The Associated Press, marking a sharp reversal of longstanding guidance meant to respect constitutional limits on government searches.”
If the Fourth Amendment is just a suggestion, some nice words on parchment but little else, then it’s meaningless.
5. Warrants focus mainly on government data collection and protections are lacking on government data use and retention.
In today’s age of Big Data, it’s not enough to merely limit the data the government gathers. The government already has enormous quantities of data, and the government can use AI to find out all sorts of new things about us by analyzing that data. Limiting data collection is just one part of a much larger equation.
The text of the Fourth Amendment is broad enough to encompass far more than requiring warrants for government data gathering. It prohibits “unreasonable searches or seizures.” There is no reason why a “search” can’t be more broadly understood to encompass use and analysis of data after it is obtained. A “seizure” can be viewed beyond the moment something is seized and extended through the entire time it is retained. Other amendments can also provide protection, such as the First Amendment. I argued long ago that the First Amendment can also be a source of criminal procedure.
For these reasons, I don’t think warrants are enough to meet the moment we’re in. When the rule of law is being dismantled, when existing law is muddled up with incoherent doctrine, when there are great divisions about what should be criminalized, warrants are woefully insufficient to protect us.
We need real separation of powers that won’t break down like our current system has been. We need stronger structural mechanisms; too much in our system relies on good faith. We need less data gathering by companies so there’s less data for the government to gather.
And we need laws that build in protections to surveillance technologies so we don’t have to rely solely on the conscience of companies like Anthropic that refuse to give the government AI systems for mass surveillance. Our privacy and fundamental liberties shouldn’t depend upon mere corporate ethics. For every company that has red lines, there are others that don’t.
For more ideas about what can be done to protect ourselves, read my new article, Privacy in Authoritarian Times, 67 B.C. L. Rev. (2026).
Certainly, forbidding general warrants like geofence warrants in Chatrie is a start—actually, it’s the bare minimum. But much more must be done to have the robust protection against government power the Framers to the Constitution envisioned.