Abstract
Does the Fourth Amendment protect against governmental seizures of an individual’s digital property? The answer depends on whether government action constitutes a meaningful interference with digital property. Back to the Fourth Amendment considers the Founders’ intentional choice to use two separate words, search and seizure, to protect against governmental overreach. The Article advances an approach to the seizure analysis that protects against governmental seizures of digital property—by encouraging the Court to look at whether the government access meaningfully interfered with an owner’s right
to exclude, historically recognized as a possessory interest.
The Fourth Amendment was adopted in response to “reviled ‘general
warrants’ and ‘writs of assistance’ of the colonial era” to prohibit the government from rummaging through “persons, houses, papers, and effects” without either probable cause or the search at least being reasonable. The government’s ability to remotely access and copy each individual’s digital footprint and data without such a warrant supported by probable cause risks the Fourth Amendment’s words no longer carrying even a fraction of the weight that they were intended to. In Katz v. United States, the Court held that the physical intrusion test is no longer the sole method used to determine whether the government conducts a search. Not only have governmental searches changed since the founding. Governmental seizures also look substantially
different today compared to when the Fourth Amendment was adopted.
The Founders were careful to consider and choose words that carved out
narrow bounds in their adoption of the Fourth Amendment—to appropriately strike the balance of effective governmental operation without societal oppression. Looking at an owner’s right to exclude individuals from accessing digital data is necessary to ensure both sides of the Fourth Amendment scale remain in the air. Back to the Fourth Amendment proceeds in five Parts. After the Introduction, Part II discusses the purpose of the Fourth Amendment to show that its history supports an understanding of seizure doctrine that continues to protect possessory interests in today’s digital world. Part III lays out current search and seizure doctrines and how each has evolved—or not evolved—with technological advancements. Part IV then advances a technologically neutral approach to the Fourth Amendment’s current seizure of property test to sufficiently protect against governmental overreach that the Founders, at the time of adoption, were concerned would permeate society.
Repository Citation
Shea Daley Burdette,
Back to the Fourth Amendment,
109 Marq. L. Rev. 1417
(2026).
Available at: https://scholarship.law.marquette.edu/mulr/vol109/iss4/6