Volume 78, Number 5

November 2003

Fortress of Solitude or Lair of Malevolence? Rethinking the Desirability of Bright-Line Protection of the Home

Lee C. Milstein

Fourth Amendment jurisprudence currently affords the home great protection against searches by law enforcement; since its decision in Kyllo v. United States, the Supreme Court has even protected the home from non-invasive scans. In this Note, Lee C. Milstein argues that focusing on the location of the search or scan rather than on the nature of the activity has a perverse effect on the protection of privacy interests. Scanning technologies that alert only to the presence of contraband or illegal activities, for example, could prevent the need for traditional searches of homes that incur substantial collateral damage to an individual’s privacy rights. At the same time, the focus on the home allows law enforcement virtually unfettered powers of surveillance in public, which can give law enforcement officers significant amounts of information about an individual. Milstein concludes by proposing a new approach to Fourth Amendment jurisprudence that would permit the use of highly particularized scanning technologies for law enforcement and by exploring the potential for the development of new technologies that would minimize invasions of privacy while making the enforcement of the criminal law more effective under this alternate approach.