Amendment Interests Research Articles

Standing in the Shadows of the New Fourth Amendment Traditionalism

In the past decade, the Supreme Court has revived an originalist, property-based approach to evaluating Fourth Amendment problems. The Court has used this approach to broaden its understanding of the sorts of governmental conduct that qualify as Fourth Amendment searches. So far, however, neither the Court nor scholars have offered a comprehensive assessment of the implications of this new Fourth Amendment traditionalism for what is known as Fourth Amendment standing, a doctrine reflecting the Court’s longstanding determination that only one whose own Fourth Amendment interests are implicated by government conduct is entitled to raise a Fourth Amendment challenge to such conduct. This Article, which provides the first sustained treatment of the issue, concludes that the logical consequence of the new traditionalism will be a significant expansion of the class of people entitled to make Fourth Amendment claims, including in cases involving the kinds of quotidian, physical searches and seizures that have long been the focus of complaints about law enforcement abuse of vulnerable communities.

Safeguarding Fair Use Through First Amendment’s Asymmetric Constitutional Fact Review

This Article proposes a novel procedural safeguard for copyright fair use. Two courts recently overturned jury verdicts on the question of fair use. In Corbello v. DeVito, the trial court overturned a jury verdict that had rejected a fair use defense. In Oracle America, Inc. v. Google LLC, the Federal Circuit reversed a jury verdict that had found in favor of a defendant’s fair use defense. While this Article offers a new perspective on these cases, the main goal is more ambitious: a theoretical framework to heighten protection for the free expression interests of users of copyrighted works. Specifically, appellate courts should apply an asymmetric review of fair use determinations as a constitutional fact. And as a constitutional fact, fair use determinations should be reviewed de novo only when the free-speech-claimant does not prevail in the lower court. This is the first work to (1) offer a theoretical justification and limiting principle for constitutional fact review and (2) extend this framework to copyright fair use. The thesis relies on the following three propositions. First, constitutional fact review should be a one-way, asymmetric review, rather than a two-way, symmetric review. De novo review of constitutional facts should only apply when the free-speech-claimant does not prevail in the lower court. The circuit courts of appeals are split on this issue, and for over three decades the Supreme Court has declined to resolve the split. Second, the copyright fair use analysis embeds First Amendment interests. By embedding First Amendment issues within copyright fair use and denying independent First Amendment scrutiny, the Court has de facto constitutionalized the fair use inquiry. Fair use is thus a constitutional fact. And lastly, as a proxy for First Amendment interests, fair use should receive added protections of independent appellate review — like other speech-implicating cases. Specifically, this Article argues copyright fair use determinations should receive asymmetric, independent appellate review of fair use as a constitutional fact. The question of the appropriate standard of appellate review for fair use decisions is underexplored and undertheorized. Other scholars have debated whether independent, constitutional fact review should be applied symmetrically or asymmetrically. Others have recognized that fair use protects core free speech interests. And others have recognized that standards of review in copyright cases matter. But no one has put all of the aforementioned pieces together to propose the heightened procedural protection of constitutional fact review in fair use cases to protect users’ First Amendment interests. This Article fills that gap.

Property, Privacy, and Justice Gorsuch's Expansive Fourth Amendment Originalism

In Carpenter v. United States, the Supreme Court reaffirmed the continuing vitality of the privacy framework Katz v. United States established in 1967 for identifying Fourth Amendment searches. Justice Neil Gorsuch, in dissent, critiqued Katz as indeterminate and inconsistent with democratic values. In this article, I analyze Justice Gorsuch’s proposed alternative framework, which he described as the “traditional approach” to determining Fourth Amendment interests. Instead of grappling with the indefinite and textually and historically unfounded “reasonable expectations of privacy” framework of Katz, Gorsuch asserted, this traditional test would require judges to focus on whether a “house, paper, or effect was yours under law.” Although Gorsuch offered preliminary thoughts on this rubric, his opinion left open important questions, including the sources of law to which the Court should look in identifying property interests; the breadth of the definitions of “papers” and “effects” and the kinds of property closely enough associated with the person for potential implication of Fourth Amendment rights; and the ways in which government conduct impinging on such property interests might trigger Fourth Amendment protection. Several passages in Justice Gorsuch’s opinion suggest that he would take a broad, flexible approach to each of these issues. Overall, whatever ambiguities exist in Gorsuch’s dissent, it is certain that his property model would be more expansive than the pre-Katz trespass test that the Court rehabilitated in 2012. If that is the case, however, then the results that courts would be likely to reach under this framework might closely resemble outcomes under a principled privacy-based analysis. Additionally, because a broad property rubric would involve a significant degree of judicial discretion, it would replicate Katz’s indeterminacy. Thus, while Gorsuch’s approach might carry forward the benefits associated with Katz’s flexibility, it would also reproduce Katz’s associated flaws, including manipulability and democratic illegitimacy. Nonetheless, Justice Gorsuch might favor a flexible “traditional approach” over Katz because its explicit attention to the language of the Fourth Amendment is more conceptually elegant and, at least aesthetically, more consistent with Gorsuch’s originalist sympathies.

Considering Fair Use: DMCA’s Take Down & Repeat Infringers Policies

Courts have recently clarified some aspects of the Digital Millennium Copyright Act safe harbor system, yet other aspects remain hazy. In this haze, ISPs are incentivized to over-block content, and copyright holders are allowed to give a narrow, subjective reading of a user’s fair use. Subjectively, copyright holders can, in good faith, hold objectively unreasonable views about fair use. The asymmetry between copyright holders’ rights and remedies and users’ rights and remedies threatens socially valuable speech and creates a chilling effect. And the risk of extra-judicial termination of Internet access under a vague and variable repeat infringers policies threatens fundamental First Amendment interests. Policy changes are proposed to harness fair use considerations to protect First Amendment interests in the digital sphere. The calculus and consequence for sending takedown notices should be recalibrated. By curbing copyright overreach and minimizing the chilling effect, the potential for robust exchanges over new communication technologies can be realized.

Considering Fair Use: DMCA’s Take Down & Repeat Infringers Policies

Courts have recently clarified some aspects of the Digital Millennium Copyright Act safe harbor system, yet other aspects remain hazy. In this haze, ISPs are incentivized to over-block content, and copyright holders are allowed to give a narrow, subjective reading of a user’s fair use. Subjectively, copyright holders can, in good faith, hold objectively unreasonable views about fair use. The asymmetry between copyright holders’ rights and remedies and users’ rights and remedies threatens socially valuable speech and creates a chilling effect. And the risk of extra-judicial termination of Internet access under vague and variable repeat infringers policies threatens fundamental First Amendment interests. Policy changes are proposed to harness fair use considerations to protect First Amendment interests in the digital sphere. The calculus and consequence for sending takedown notices should be recalibrated. By curbing copyright overreach and minimizing the chilling effect, the potential for robust exchanges over new communication technologies can be realized.

The First Amendment and Speech Urging Suicide: Lessons from the Case of Michelle Carter and the Need to Expand Brandenburg's Application

This Article examines the level of First Amendment protection that applies when a defendant-speaker is charged with involuntary manslaughter based on successfully urging a person to commit suicide. The Supreme Judicial Court of Massachusetts’ February 2019 decision in Commonwealth v. Carter provides a timely analytical springboard. The Article argues that courts should adopt the United States Supreme Court’s test for incitement created a half-century ago in Brandenburg v. Ohio before such speech is deemed unprotected by the First Amendment. It contends this standard is appropriate even in involuntary manslaughter cases where intent to cause a specific result is not required under criminal law. The Article concludes that the Brandenburg test, which embraces a specific intent element, strikes a better balance between First Amendment interests and criminal law than does the elastic “integral to criminal conduct” standard from Giboney v. Empire Storage & Ice Co. that was applied in Commonwealth v. Carter. Ultimately, although Brandenburg might not have saved Michelle Carter from conviction had it been used, it could protect future defendants where demonstrating intent seems less clear-cut.

Brief of Amici Curiae Scholars of Constitutional Law, First Amendment Law, and Media Law in Support of the Defendant in United States v. Terry J. Albury

Amici are seventeen professors whose research and teaching primarily focus on constitutional law, First Amendment law, and media law. The professors have an interest in ensuring the continued operation of a free, fair, and robust press in the United States. The sentencing of Terry Albury requires this Court to determine what criminal punishment should appropriately be imposed on a government employee who disclosed to a journalist information of significant public interest to his fellow citizens. In making that determination, this Court can and should consider the important First Amendment interests at stake. It is for this Court, at sentencing, to craft a punishment that properly weighs the constitutional protection of free speech and the public interest in the newsworthy disclosure at issue in this case against any actual harm to national security caused by Mr. Albury’s act of conscience. To aid the Court in making this determination, amici draw the Court’s attention to several factors that underscore the important interests that should weigh in the sentencing decision.

Corporate Political Speech: Who Decides?

I. INTRODUCTION The Supreme Court spoke clearly this Term on the issue of cor-porate political speech, concluding in Citizens United v. FEC (1) that the First Amendment protects corporations' freedom to spend corporate funds on indirect support of political candidates. (2) Constitutional law scholars will long debate the wisdom of that holding, as do the authors of the two other Comments in this issue. (3) In contrast, this Comment accepts as given that corporations may not be limited from spending money on politics should they decide to speak. We focus instead on an important question left unanswered by Citizens United: who should have the power to decide whether a corporation will engage in political speech? Under existing law, a corporation's decision to engage in political speech is governed by the same rules as ordinary business decisions, which give directors and executives virtually plenary authority. In this Comment, we argue that such rules are inappropriate for corporate political speech decisions. Instead, lawmakers should develop special rules to govern who may make political speech decisions on behalf of corporations. We analyze the types of rules that lawmakers should consider. We also offer a set of proposals, and policymaking consider-ations, for designing such rules. In Part II, we consider existing corporate law rules governing the political speech decision. As long as corporations are permitted to engage in political speech, we show, decisional rules governing whether and how they decide to do so are inevitable. Under existing corporate law rules, corporate political speech decisions are subject to the same rules as ordinary business decisions. Accordingly, corporate political speech decisions do not require shareholder input, a role for independent directors, or disclosure--the safeguards that corporate law rules establish for special corporate decisions. We explain that the interests of directors and executives with respect to political speech decisions may diverge from those of shareholders, (4) that the financial implications of these decisions are hardly trivial, and that the costs of the divergence of interests may be exacerbated by the special expressive significance that these decisions carry for shareholders. We conclude that political speech decisions are substantially different from, and should not be subject to the same rules as, ordinary business decisions. In Part III, we assess lawmakers' choices with respect to rules that would align corporate political speech decisions with shareholder interests. In particular, we suggest that lawmakers consider adopting rules that (i) provide shareholders with a role in determining the amount and targets of corporate political spending; (ii) require that independent directors oversee corporate political speech decisions; (iii) allow shareholders to opt out of--that is, either tighten or relax--each of these first two rules; and (iv) mandate detailed and robust disclosure to shareholders of the amounts and beneficiaries of a corporation's political spending, whether made directly by the company or indirectly through intermediaries. We explain how such rules would benefit shareholders. We also explain why the proposed rules are best viewed not as limitations on corporations' speech rights but rather as a method of determining whether the corporation actually wishes to engage in political speech. Thus, these rules protect, rather than abridge, corporations' First Amendment interests. Part IV discusses an additional objective that decisional rules concerning corporations' political speech may seek to serve: the protection of minority shareholders from forced association with political speech supported by a majority of shareholders. We discuss the economic and First Amendment interests of minority shareholders that lawmakers may seek to protect. Although we conclude that requiring unanimous shareholder approval for corporate political speech would likely be neither desirable nor permissible, we argue that decisional rules addressing political spending opposed by a sufficiently large minority of shareholders should be viewed as constitutionally permissible, and we discuss how lawmakers could best design such rules. …

Copyright in Inanimate Characters: The Disturbing Proliferation of Microworks and the Negative Effects on Copyright and Free Expression

In its September 2015 decision in DC Comics v. Towle, the United States Court of Appeals for the Ninth Circuit recognized the existence of a copyright for inanimate characters. The court held that the Batmobile – a fictional car driven by a fictional superhero – was an independently copyrightable work. This article explores the problems with the Ninth Circuit's analysis and argues that increasing copyright protection for what the authors call “microworks” is misguided and harms First Amendment interests.

Regulating Real-World Surveillance

A number of laws govern information gathering, or surveillance, by private parties in the physical world. But we lack a compelling theory of privacy harm that accounts for the state’s interest in enacting these laws. Without a theory of privacy harm, these laws will be enacted piecemeal. Legislators will have a difficult time justifying the laws to constituents; the laws will not be adequately tailored to legislative interest; and courts will find it challenging to weigh privacy harms against other strong values, such as freedom of expression. This Article identifies the government interest in enacting laws governing surveillance by private parties. Using social psychologist Irwin Altman’s framework of “boundary management” as a jumping-off point, I conceptualize privacy harm as interference in an individual’s ability to dynamically manage disclosure and social boundaries. Stemming from this understanding of privacy, the government has two related interests in enacting laws prohibiting surveillance: an interest in providing notice so that an individual can adjust her behavior; and an interest in prohibiting surveillance to prevent undesirable behavioral shifts. Framing the government interest, or interests, this way has several advantages. First, it descriptively maps on to existing laws: These laws either help individuals manage their desired level of disclosure by requiring notice, or prevent individuals from resorting to undesirable behavioral shifts by banning surveillance. Second, the framework helps us assess the strength and legitimacy of the legislative interest in these laws. Third, it allows courts to understand how First Amendment interests are in fact internalized in privacy laws. And fourth, it provides guidance to legislators for the enactment of new laws governing a range of new surveillance technologies — from automated license plate readers (ALPRs) to robots to drones.

The First Amendment Right to Record Images of Police in Public Places

Analyzing federal cases through May 2015, this Article examines the current, contested terrain of the emerging, yet qualified, First Amendment right to record police performing duties in public venues. The Article argues that multiple First Amendment interests, ranging from the watchdog role of the press to discovery of truth under the marketplace of ideas theory, mandate that the reasonable-restrictions standard, which is now deployed by most courts to decide if this nascent right may permissibly be abridged, be jettisoned in favor of a more rigorous, speech-friendly approach. Specifically, the Article advocates a form of judicial review akin to strict scrutiny. It also proposes a framework of analysis—a “Continuum of Necessity”—for adding consistency and teeth to this tack. The Article concludes by calling on the Supreme Court to quickly consider a right-to-record case to establish two key points: (1) the existence of a clearly established First Amendment right in 2015 to record police performing their duties in public places; and (2) any restrictions imposed on this right are permissible only if they are so narrowly tailored that no viable alternatives exist that would allow for greater ability to record police under the circumstances.

Mired in Confusion: Nominative Fair Use in Trademark Law and Freedom of Expression

Trademark law, like other areas of intellectual property law, frequently conflicts with First Amendment interests in various ways. One particularly critical intersection between trademark and free expression is the nominative fair use doctrine, which was created to ameliorate this conflict to some degree. This article explores the history of nominative fair use and argues that the test is inadequate to the task of protecting First Amendment values within trademark law. The article then analyzes an arguably better approach, the Rogers test, and argues that courts should look to Rogers as a superior means of preserving expressive values in trademark doctrine.

Private Open Forums

Traditional public forums for the exercise of First Amendment rights are vanishing for four reasons: communication has migrated online, where private actors control digital spaces; private actors readily censor their forums, either for profit or at the government’s behest; public forums can be “privatized” for certain events, which permit organizers to engage in viewpoint exclusion; and the list of public forums, which the Supreme Court is loathe to expand, has never been a long one. This is a problem because the expression of First Amendment rights cannot exist in isolation, but has effect only in a larger system of interacting rights. When an individual speaks, a hearer listens, often at an organization’s event. Local press may be covering the speech, and listeners may be there in person, or tune in by television, radio, or the Internet. The legal status of the forum matters greatly because it facilitates all of these interconnected instances of First Amendment activity.This Article responds to the constitutional crisis entailed in vanishing traditional public forums and their persistent importance to First Amendment interests. It does so by proposing a “Private Open Forums” doctrine. A Private Open Forum is any space (digital, physical, or otherwise) that is privately owned; substantially open to the public; substantially non-selective/non-discriminatory; functions primarily to facilitate users’ First Amendment activities; and intended to facilitate those activities. I argue that operators of Private Open Forums constitutionally have and normatively should have the free-standing First Amendment right to maintain their forums and facilitate users’ First Amendment activities, as well as standing to defend their users’ First Amendment rights exercised on the forum.

The Best of Two Tests: A Hybrid Test for Balancing Right of Publicity and First Amendment Interests Tailored to the Complexities of Video Games

Over the past six decades, the right of publicity has been developed almost as quickly as the world around it. As major advances in film and computer technology have allowed content producers to depict real people in their works in a plethora of new ways, the people depicted have used the right of publicity to challenge many of these uses. As a result, courts have been faced with constantly remolding the right of publicity to account for these technological advances. As a creature of state law, the development of the right of publicity has varied across the country, with little guidance from the Supreme Court or Congress. However, courts across the circuits have consistently recognized that the property right granted by the right of publicity must be balanced against the First Amendment rights of the creators of expressive works. Ultimately, courts have developed a number of tests to balance the right of publicity against the First Amendment. One such test, the “transformative test,” was developed by the California Supreme Court and has been used in a number of circuits. This Comment argues that though the transformative test may have been appropriate when used in the context it was created, traditional still artistic depictions, it has been overextended and is ill-suited for the analysis of interactive media such as video games. Specifically, this Comment takes issue with a standard announced by the California Supreme Court, in No Doubt v. Activision Publishing Inc., and then followed by the Ninth Circuit in Keller v. Electronic Arts. This standard, now used by courts when applying the transformative test to video games, states that literal depictions of celebrities within works will not be protected under the First Amendment if the celebrity is depicted doing what they became famous for. This Comment demonstrates that this standard is in direct conflict with case precedent in a variety of contexts including: art, film, and literature. Ultimately, this Comment contends that a new test must be crafted to balance the right of publicity with the First Amendment. Such a test must possess the flexibility to analyze both simple artistic depictions and depictions within more complex interactive media. This Comment offers one such test, which borrows and adapts language from the transformative test and the Rogers Test, to create a method of analysis that is better suited for application to both simple and complex media of expression.

Animal Production, Ag-gag Laws, and the Social Production of Ignorance: Exploring the Role of Storytelling

In recent years, a number of so-called “farm protection” or “ag-gag” laws have been proposed and passed in state legislatures across the USA. These laws generally ban the undercover photographing or videotaping of industrial animal agricultural production and processing facilities. Proponents of the legislation suggest that such bills protect local farm economies and prevent misinformation campaigns by animal rights activists. Diverse sets of critics have argued against the bills, suggesting that they prevent whistleblowers from exposing animal cruelty and stand in the way of the public's right to know. This paper analyzes the debate by blending theory from science and technology studies regarding the social production of knowledge and ignorance with communication theory that explores the power of storytelling in shaping public understandings of social life. It investigates the stories told by three oppositional stakeholder groups—members of industrial animal agribusiness who defend the legislation, small-scale producers and consumers who believe the legislation prevents productive transparency, as well as animal advocacy and first amendment interests who believe the legislation masks fundamental flaws in the contemporary animal agricultural system. The paper provides insight into how competing mediated narratives frame ideological battles over the present and future of animal production processes. It demonstrates how fundamental and often opposing value systems construct what we consider knowledge and non-knowledge in the context of our contemporary risk society and in the digital media age.

Fourth Amendment Regulation of Information Processing

This Essay examines the Fourth Amendment implications of information processing by the government. It starts with an overview of the main challenge to regulating information processing under the Fourth Amendment: the conventional wisdom that the Fourth Amendment regulates the government’s initial access to physical evidence, but not the subsequent processing or analysis of that evidence. The distinction between “acquisition” and “analysis” of evidence underpins many familiar doctrines in Fourth Amendment jurisprudence, from plain view to the third party doctrine. The common thread in these doctrines is that the only privacy the Fourth Amendment protects is privacy at the point of collection. As one Fourth Amendment scholar has put it, once evidence is collected or exposed “the work of the Fourth Amendment is done,” regardless of whether further intrusions into privacy are possible. While it has some grounding in the case law, the conventional wisdom is wrong, at least as a categorical rule of Fourth Amendment jurisprudence. The Fourth Amendment reaches information processing, and for good reason. One need look no further than the Court’s classic Fourth Amendment cases to see the error in the conventional wisdom. In cases like Kyllo v. United States, Skinner v. Railway Executive Labor Association, U.S. v. Jones, United States v. Jacobsen, and even Katz v. United States, the Court has reached information processing, albeit without a guiding theory. Taken together, these cases belie the conventional distinction between “acquisition” and “analysis” of evidence. They demonstrate that in a world of enhanced police technologies, traditional spatial and temporal doctrinal categories are no longer effective proxies for protecting Fourth Amendment interests. Recognizing this fact, the Supreme Court in these cases has been willing to depart from those traditional categories in order to reach information processing conduct.If the conventional wisdom is flawed, what is the alternative? Building upon the trends already immanent in the Court’s Fourth Amendment jurisprudence, this Essay argues for reaching information processing where necessary to protect the practical privacy protected by the “right of the people to be secure in their persons, houses, papers, and effects” against enhanced police technologies. It proposes three guidelines for courts evaluating information processing under the Fourth Amendment. First, courts should adopt a contextual, rather than categorical, approach to Fourth Amendment analysis, to account for the way technology changes the meaning of government conduct. Considered in a vacuum, collecting a single piece of “exposed” evidence (Jones) is no harm to privacy, anymore than is standing in front of a house (Kyllo) or manipulating a discarded blood or urine sample (Skinner). It is only the added context of the government’s aggregation and analysis of that information that raises privacy — and Fourth Amendment — concerns. Second, Courts should use the “practical privacy” of the past as a key measure of the reasonableness of privacy expectations today. As the Supreme Court and legal scholars have recognized, the ‘right to be secure’ is a pre-existing right, and one that is informed, in part, by the practical privacy from government intrusion that existed at the time the Fourth Amendment was enacted. Courts should account for technology’s ability to peel back this practical privacy, and where possible should “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” While practical privacy is only the starting point of the Fourth Amendment analysis, it is an important one in the regulation of enhanced technologies. The third principle is one of judicial minimalism. Fourth Amendment regulation of enhanced technologies involves ever-changing facts and increased risks of error. Courts regulating information processing should therefore seek to apply flexible standards to draw narrow rules. This minimalist approach has two virtues: it reduces the risk of significant harm that can result from broad, categorical judgments about new surveillance technologies (see, e.g., Olmstead v. United States), while allowing judges the flexibility to make the nuanced distinctions required to solve the Fourth Amendment problems raised by a host of information processing conduct, from the imaging and analysis of smartphones to biometrics tracking and DNA analysis.

Pledge, Promise, or Commit: New York's Tenuous Limitations on Judicial Campaign Speech

A decade has passed since Republican Party of Minnesota v. White, the landmark Supreme Court decision loosening speech restrictions on judicial candidates. White involved the announcements of legal and political views. New York limits speech concerning the extent to which judicial candidates may pledge, promise, or commit to legal or political positions. As these categories partially overlap in their applicability to a given campaign statement, New York judicial candidates must carefully navigate what they can and cannot say to avoid disciplinary censure. This Article sets out to determine the precise delineation of what can and cannot be said in New York and whether the legal speech that remains is a constitutionality valid limit. Ultimately, the restrictions are problematic because of the limited state interest in restricting judicial candidate speech and the false idea that speech that does not favor one set of legal interests or class of litigants over another can be sufficiently meaningful to the electorate to satisfy the relevant First Amendment interests.

Applying the Fourth Amendment's National-Security Exception to Airport Security and the TSA

In this paper, I explore and evaluate the various judicial doctrines that courts have used over time to except airport-security searches from the Fourth Amendment’s warrant requirement. I argue that because most courts have failed to properly apply the actual doctrine that they claim to apply — the administrative-search exception — courts should adopt the national-security exception instead. While this exception has traditionally been applied to warrantless wiretapping, the national-security exception provides courts with a workable solution that protects both the individual citizen’s vital Fourth Amendment interests and the nation’s security interests in preventing another airline-terrorist attack.

Super PACs and Financing the 2012 Presidential Election

This essay provides an initial assessment of competing claims about the impact of super PACs and also offers early insights on what super PACs are doing in this election cycle and what impact it may have on the 2012 presidential election and future elections.

A Technology-Centered Approach to Quantitative Privacy

We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in technologies that continuously track and aggregate information about our daily activities. The Fourth Amendment tipping point was marked this term by United States v. Jones. There, law enforcement officers used a GPS device attached to Jones’s car to follow his movements for four weeks. Although Jones was resolved on narrow grounds, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of information about their public or shared activities, even if they lack a reasonable expectation of privacy in each of the constitutive particulars. This quantitative approach to the Fourth Amendment has since been the focus of considerable debate. Among the most compelling challenges are identifying its Fourth Amendment pedigree, describing a workable test for deciding how much information is enough to trigger Fourth Amendment interests, and explaining the doctrinal consequences. This Article takes up these challenges.Our analysis and proposal draw upon insights from information privacy law. Although information privacy law and Fourth Amendment jurisprudence share a fundamental interest in protecting privacy interests, these conversations have been treated as theoretically and practically discrete. This Article ends that isolation and the mutual exceptionalism that it implies. As information privacy scholarship suggests, technology can permit government to know us in unprecedented and totalizing ways at great cost to personal development and democratic institutions. We argue that these concerns about panoptic surveillance lie at the heart of the Fourth Amendment as well. We therefore propose a technology-centered approach to measuring and protecting Fourth Amendment interests in quantitative privacy. As opposed to proposals for case-by-case assessments of information “mosaics,” which have so far dominated the debate, we argue that government access to technologies capable of facilitating broad programs of continuous and indiscriminate monitoring should be subject to the same Fourth Amendment limitations applied to physical searches.