The Fourth Amendment protects the rights of American citizens to secure their persons, houses, papers, and effects against unreasonable search and seizure. Modern Supreme Court jurisprudence, however, has inadvertently undermined these protections as the challenges of modern technology rapidly outpace the Court’s ability to anticipate the unique difficulties presented by sophisticated surveillance. This problem began with the Warren Court’s decision in Katz v. United States, which held that the “touchstone” of the Fourth Amendment is whether an individual has a reasonable expectation of privacy in the actions they are undertaking.
This Article argues that the Supreme Court should abandon the Katz doctrine and return to the property interests embedded in the original meaning of the Fourth Amendment. Specifically, that the Supreme Court should evaluate government actions in terms of digital trespass. First, this Article examines the Katz doctrine’s history and lays out salient criticisms and defenses of the Katz doctrine. Next, this Article evaluates two recent proposals for re-imagining the Fourth Amendment and synthesizes previous case law and existing commentary, ultimately proposing an alternative digital trespass doctrine. Finally, this Article explores how the digital trespass doctrine would function, how it solves the issues Katz created, and what potential challenges this new doctrine could present.