PogoWasRight.org

Menu
  • About
  • Privacy
Menu

Can Magistrate Judges Rule on How the Fourth Amendment Applies to the Execution of a Court Order At the Time of the Application?

Posted on February 28, 2012July 2, 2025 by Dissent

Orin Kerr writes:

Last week, I filed an amicus brief in the Fifth Circuit on a very important question in high-tech crime investigations. As far as I know, the issue is a matter of first impression in any court. Here’s the question: When privacy statutes require the government to obtain a court order before collecting records or conducting surveillance, is the constitutionality of the future execution of the order ripe for adjudication at the time of the application?

That’s a mouthful, so let me try an example. Imagine you’re a federal magistrate judge. The government comes to you with an application for a court order to collect records as required by a federal privacy statute. The government has satisfied the statutory standard set by Congress. But you think that the statute is unconstitutional, and that compliance with the statute therefore will violate the Fourth Amendment. Here’s the question: Can you deny the order and issue an opinion explaining your denial based on your conclusion that the collection of the records would violate the Fourth Amendment? Or do you have to issue the order, let the government execute it, and then wait for an ex post challenge to the constitutionality of the government’s conduct?

Read more on The Volokh Conspiracy.  It’s an interesting question and one that seems increasingly important in these days of government seeking Twitter or social media records on users.

No related posts.

Category: CourtLawsSurveillanceU.S.

Post navigation

← Ie: Self-service search warrants after Damache v. DPP
Twitter partners with Datasift to unlock tweet archive →

Now more than ever

Search

Contact Me

Email: info@pogowasright.org

Mastodon: Infosec.Exchange/@PogoWasRight

Signal: +1 516-776-7756

Categories

Recent Posts

  • Trump administration is launching a new private health tracking system with Big Tech’s help
  • Attorney General James Takes Action to Protect Sensitive Personal Information of Tens of Millions of People
  • Searches of Your Private Data in the Cloud Amount to Illicit State Action
  • How a Tax Subpoena in Ohio Tests European Privacy Law
  • Cambodia moves to enact comprehensive data privacy law
  • White House ordered to restore Medicaid funding to Planned Parenthood clinics
  • California Attorney General Announces $1.55M CCPA Settlement with Healthline.com

RSS Recent Posts on DataBreaches.net

  • WA: Cyber-attacks problem for small hospitals
  • Florida prison data breach exposes visitors’ contact information to inmates
  • Experian Wins Appeal to Send Data Breach Victim to Arbitration
  • ICANN sends breach notice to domain registrar Webnic about failure to deal with DNS abuse compliants properly
  • Canadian cybercriminal sentenced to a year in prison for NFT theft scheme
©2025 PogoWasRight.org. All rights reserved.
Menu
  • About
  • Privacy