Lichtenberger and The Three Bears

Abstract

Finding a happy medium is hard. Often, it is a challenge to find a workable balance between two unworkable extremes. Known as the “Goldilocks Principle,” this phenomenon has been observed in fields as diverse as developmental psychology and astrobiology. As Goldilocks found in the Three Bears’ house, “just right” may not come on the first attempt. We may have to explore the extremes of the spectrum—“too hot” and “too cold”—before we can settle on “just right. Goldilocks also discovered that this process is all the more difficult in a new environment—like the Three Bears’ house. Goldilocks persevered, however, until she found “just right.” Federal courts face a similar dilemma in the private search exception to warrant requirements under the Fourth Amendment. On one hand are legitimate individual privacy interests and on the other, the legitimate interests of law enforcement to protect society. Courts must not handcuff law enforcement agents in their duties in the name of individual privacy (“too cold”), but neither should they unreasonably curtail individual liberty by giving too much latitude to legitimate government interests (“too hot”). It is no small task to identify an appropriate compromise between the competing principles of protecting the privacy of American citizens and protecting American citizens from crime. Like Goldilocks, courts today also face this challenge in an unfamiliar world. What is the “just right” application of the private search exception in the world of digital storage devices, which hold staggeringly large amounts of data and whose structure challenges traditional Fourth Amendment concepts?