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The digital world encodes our lives with incriminating clues. How you travel, live, love, and shop are tracked through growing surveillance technologies. Police have recognized this reality and are actively exploiting new surveillance tools for investigative purposes. The Fourth Amendment--the constitutional protection meant to limit police search powers--has not kept up with the privacy and security threats of these new digital technologies. Current doctrine has remained stymied by legal tests asking all the wrong questions about "reasonable expectations of privacy" and "trespass" searches. While the Supreme Court has acknowledged that "digital is different," it has not yet provided a coherent theory to protect individuals from growing digital surveillance. This Article offers an alternative Fourth Amendment theory based on the harm of rummaging--a principle that can trace its lineage from the Founding debates around General Warrants and the Writs of Assistance to the Supreme Court's most recent cases on cell phone location data. Fear of government agents rummaging into private homes and papers motivated the passage of the Fourth Amendment and has remained a doctrinally coherent throughline recurring in Fourth Amendment cases. This Article develops the "rummaging test" as a new way to see the harms of government collection of digital evidence. The Article excavates rummaging as an original justification for the Fourth Amendment and then demonstrates how the digital rummaging concept perfectly responds to the harms of government surveillance in the digital age. The rummaging test recognizes that the arbitrary, overbroad, invasive, exposing collection of personal data reflects the same harms that gave rise to the Fourth Amendment in the first instance. The Article seeks to refocus attention on the government's power to rummage through personal data by examining legal challenges around smart-home data and long-term pole cameras. The hope is to move the longstanding background principle against rummaging to the foreground of Fourth Amendment analysis and thereby answer some of the hardest questions facing courts confronting challenges to digital surveillance. [ABSTRACT FROM AUTHOR]

Conventional historical accounts of the Fourth Amendment generally ignore the entire antebellum period. Fourth Amendment scholars of an originalist bent typically look to the three decades from the American Writs of Assistance controversy and the British Wilkesite cases in the 1760s, to the adoption of the Bill of Rights in 1791. Scholarship then jumps to the post-Civil War period and the first two Supreme Court decisions interpreting the Amendment, In re Jackson in 1878 and United States v. Boyd in 1886. Ignoring the entire antebellum period makes some sense given that the Supreme Court did not decide a single Fourth Amendment case during this lengthy period. But just because the Court did not make any Fourth Amendment law does not mean that the Amendment lay dormant. The Amendment was, in fact, very much alive in the hands of Northern lawyers and state legislators resisting the seizure of people of color in their States as alleged fugitives from slavery, whether under the auspices of the Fugitive Slave Acts of 1793 and 1850 or under the so-called common-law “right of recaption.” Lawyers representing alleged fugitives from slavery and state legislators trying to protect free persons of color from being kidnapped into slavery mobilized the Fourth Amendment as a preservation of state control of seizures within each respective State. According to this theory, while the Constitution’s Fugitive Slave Clause required that enslaved persons escaping bondage be “delivered up,” the Fourth Amendment demanded that any claim that a person was a fugitive from slavery would have to be adjudicated by the procedures established by the State where the claim was made. Seizing an allegedly enslaved person without heeding those procedures could subject the slave catcher to civil and criminal liability under state law. In the infamous case of Prigg v. Pennsylvania, the Supreme Court, rather than tackle this Fourth Amendment argument, simply ignored it and broadly rejected States’ attempts to regulate the seizure of allegedly enslaved persons within their borders. Ultimately, this view of the Fourth Amendment as a preservation of state control was forever lost. [ABSTRACT FROM AUTHOR]

The article examines the modern police practice of conducting pretextual stops on the motoring public in the U.S. to initiate criminal investigations without reasonable suspicion or prior judicial approval. Topics include a comparison of this practice to Great Britain's use of general writs of assistance during colonial times, an account of the author's own experience with being profiled by the police and the significance of the debate over writs of assistance in Paxton Fourth Amendment case.

The article examines unreasonable search under the Fourth Amendment of the U.S. Constitution. Topics discussed include the definition of reasonableness under the Fourth Amendment, the concerns related to Fourth Amendment reasonableness that emerge from historical materials, and lawyer James Otis' case against the writs of assistance in Massachusetts.

The providers of network services (and the makers of network devices) know an enormous amount about our lives. Because they do, these network intermediaries are being asked with increasing frequency to assist the government in solving crimes or gathering intelligence. Given how much they know about us, if the government can secure the assistance of these intermediaries, it will enjoy a huge increase in its theoretical capacity for surveillance--the ability to learn almost anything about anyone. This has the potential to create serious social harm, even assuming that the government continues to adhere to ordinary democratic norms and the rule of law. One possible solution to this problem is for network intermediaries to refuse government requests for aid and attempt to sustain those refusals in court. Although this proposal has received an enormous amount of attention, there is substantial cause for skepticism about how well it can work. Congress has given the government wide authority to demand information and assistance through tools like subpoenas, the Stored Communications Act, and Title III. Even when the government does not have specific statutory authorization, courts have interpreted the All Writs Act to authorize a great deal of open-ended aid, consistent with the well-settled Anglo-American history of third-party assistance in law enforcement. It is also far from unheard of for the executive to read restrictions on its surveillance authority narrowly, and its own inherent powers broadly, to engage in surveillance that is quasi- or extra-legal. A superior (or at least complementary) response to the problem is to restrict network intermediaries themselves by limiting how much they can learn about us and how long they can retain it. This approach treats enhanced state surveillance as a problem created by the intermediaries' stockpiling of data, and proposes to solve it at the root--which would, as a useful side effect, solve a number of other problems created by that stockpiling, too. [ABSTRACT FROM AUTHOR]

The article reports on the right of a lessor to obtain an order granting relief from stay and compelling the debtor to surrender and seek writ of assistance if the debtor refuses to comply with this statutory command or to a relinquish possession. It discusses the certain procedural steps in obtaining writ of assistance from bankruptcy courts. An overview of the emergency application for writ of assistance from the U.S. Bankruptcy Court for the Central District of California is also presented.

The article discusses James Otis' speech on the writs of assistance to a Massachusetts court, for which in awe was recorded by John Adams. It traces John Adams' efforts to document and chronicle the struggle for Independence and to defend the character and abilities of James Otis. He credited Otis as sparking the Revolution.

This article focuses on the legal oratory of former U.S. President John Adams. The spirit of colonial radicalism and opposition to English authority was generated through arguments raised in pamphlets, broadsides, newspapers, pulpits, and courtrooms. In the estimate of historian Arthur M. Schlesinger, the legal profession and the clergy provided the most articulate spokesmen for the cause. It was legal argument, which perhaps the colonists were most fond of and skilled in, that provided the framework for radical propagandists to work from. The course of direction for the colonies was established when U.S. statesman James Otis delivered the "Writs of Assistance" speech in 1761. This moment, some historians contend, marks the beginning of pre-Revolutionary America. While Otis' argument against the "Writs of Assistance" breathed into this nation new life, in perhaps no other individual was the expression of radical thought better exemplified in the court room than by John Adams.

The article offers information on the political and social views of trial advocate and legal orator James Otis. It explains that Otis, who was born in Massachusetts, left his poition as Advocate General of the Vice-Admiralty Court to prevent the issuance of writs of assistance which allowed authorities to search for any reason. It also adds that because of Otis' oration, he was able to inspire U.S. President John Adams to draft Article Fourteen of the Massachusetts Declaration of Rights of 1780.

Focuses on orator James Otis's speech on the writs of assistance. Disappearance of John Adams' copy of the speech; Publication of the Otis' speech in the journal 'Massachusetts Spy.'