Touro Law Review
Abstract
The Fourth Amendment’s protections against unwarranted government intrusion are currently undermined by the Supreme Court’s third party and open fields doctrines, which permit warrantless access to shared data and private land beyond a home’s curtilage, clashing with the Amendment’s aim to safeguard privacy and property in an era of advanced surveillance. These doctrines enable arbitrary governmental overreach, necessitating urgent review to restore constitutional protections. Rooted in Enlightenment principles, the Fourth Amendment historically protected “papers” and “effects” from physical trespass, as seen in Boyd v. United States. Katz v. United States introduced a “reasonable expectation of privacy” test, but its subjective nature fails to adapt to modern technological and societal shifts resulting in in inconsistent rulings by the Supreme Court. A proposed hybrid “SENT” standard of review which assesses the Scope and Extent of government intrusion, Necessity of information exposure, and the National Tradition/historical parallels provides a balanced, adaptable framework to ensure protections are grounded in founding principles. The third party and open fields doctrines should be abolished or reassessed using SENT to align jurisprudence with contemporary privacy expectations and founding era principles.
Recommended Citation
Looney, David J.
(2025)
"Loopholes of Liberty: The Supreme Court’s Evisceration of the Fourth Amendment,"
Touro Law Review: Vol. 40:
No.
4, Article 12.
Available at:
https://digitalcommons.tourolaw.edu/lawreview/vol40/iss4/12