Orin Kerr
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orinkerr.bsky.social
Orin Kerr
@orinkerr.bsky.social
31K followers 930 following 2.3K posts

Professor, Stanford Law School.
Senior Fellow, Hoover Institution.

Author, The Digital 4th Amendment:
https://www.amazon.com/Digital-Fourth-Amendment-Privacy-Policing/dp/0190627077/ref=tmm_hrd_swatch_0

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Orin Samuel Kerr is an American legal scholar known for his studies of American criminal procedure and the Fourth Amendment to the United States Constitution, as well as computer crime law and internet surveillance. He has been a professor of law at Stanford Law School since 2025. Kerr is one of the contributors to the law-oriented blog titled The Volokh Conspiracy. .. more

Political science 35%
Law 28%
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orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 13h
Thinking through the Chatrie grant, a real challenge is that the lack of a majority opinion below means that there are a bunch of different legal questions in play—and if argument is in April and the opinion out by June, it's all going to be have to be figured out in a super-compressed schedule.

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 14h
It will all end with a .pdf posted on the Supreme Court's website. It will be something that started life as a Word file, but that was later converted to a .pdf.

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 14h
Confidence that the Court will reach the result you like? That depends on what result you like, I suppose.

Reposted by Jonathan H. Adler

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 14h
BIG IN THE 4A WORLD: The Supreme Court has granted cert in Chatrie, the geofence warrant case, to decide the following Q: "Whether the execution of the geofence warrant violated the Fourth Amendment." (I assume this includes both whether a "search" happened and whether the warrant was lawful.)

Reposted by Orin S. Kerr

johnpelwood.bsky.social
John Elwood @johnpelwood.bsky.social · 14h
The Supreme Court has granted review in 4 new cases, which presumably will be argued in April and decided by June. All of them were previewed in this week's SCOTUSBlog post linked below. They include the constitutionality of geofence warrants -- a very cutting-edge Fourth Amendment topic.

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 1d
If you file that case, be sure to do it pro se.

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 1d
On what legal theory?

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 1d
Also seems relevant that the questions at oral argument were all about policy; no one was interested in the common law rules on this. (Gorsuch previewed his new theory, but all the rest just asked about precedent and policy interest balancing.)

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 1d
I don't think so, but the 18th century materials suggest the opposite outcome; I thin kit's hard to come out that way from an originalist perspective. Gorsuch came up with a way, but it's very creative; he basically has a new theory that avoids the history everyone has thought was relevant.

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 1d
What is a theory of multi party and social trust relationships?

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 1d
Is there a remedy of deletion of data under the Fourth Amendment?

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 1d
I've written a lot about why I think terms of service can't eliminate Fourth Amendment rights online. I was very pleased to see Justice Dallet's concurring opinion in State v. Gasper agreeing with that view; it's the strongest judicial endorsement of that view yet.
www.wicourts.gov/sc/opinion/D...

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 1d
City of LA v. Lyons makes that hard.

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 1d
Are there Fourth Amendment limits—and if so, what are they—on taking a person's picture and uploading it to a facial recognition database during a Terry stop for immigration violations?

No cases on this. And without a Bivens remedy, I'm not sure there will ever be any cases on this.

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 1d
Sorry if the link isn't working; this works.
storage.courtlistener.com/pdf/2026/01/...
storage.courtlistener.com

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 1d
I am skeptical about this one, at least on this particular reasoning.
ndcourts.gov

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 1d
Woman consents to social worker search of house, finds drugs in bathroom in glasses case. Social worker calls cops. Woman refuses to let police search; police search anyway, get the drugs. ND SCT: Police search ok, b/c 1st search extinguished rights. ndcourts.gov/supreme-cour...

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 2d
In the last 15 years or so, there's been a major shift in caselaw on how the Fourth Amendment applies to computer networks. Contents are widely understood to be presumptively protected; the debate is over whether non-content records are protected, too.

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 2d
Which position?

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 2d
"Does the Americans with Disabilities Act (ADA) require police officers to depart from their usual methods for making arrests when they confront individuals with disabilities?" Interesting concurrence by Judge Eric Murphy on that topic, here:
www.opn.ca6.uscourts.gov/opinions.pdf...

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 2d
Justice Dallet, concurring, joined by Justice Crawford: Although the Court doesn't reach the question, Terms of Service do not eliminate Fourth Amendment rights.

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 2d
Joining the CA5 & CA6, and disagreeing w/the CA2 & CA9, Wisconsin SCT holds that govt opening a file that had been flagged as CSAM by private provider scanning that found a hash match does not exceed the private search doctrine and does not require a warrant.
www.wicourts.gov/sc/opinion/D...

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 2d
Possible. Although some had speculated that maybe they stayed away from the 4A b/c the Court had made an originalist turn and did not want to take on 4A questions where there were no clear historical materials and was only precedent and policy balancing. (So much for that idea!)

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 2d
This this was one of those really rare cases when there was 18th century history on this very specific issue, and the briefing was filled with it. They just all ignored that, with Gorsuch coming up with a new theory for why other rules from another context should be used instead.

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 2d
The key problem, it seems to me, is that at common law government powers were narrow— much narrower than Justices today, crafting a system of police powers, would want.

So it's a clash: Original public meaning versus good policy. Policy won, 9-0.

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 2d
It's narrow, but not sure it's a nothing-burger, in that it resolves a serious split on one side and against the other.

But is it not weird that zero Justices had any interest in the common law powers of law enforcement, which the Court has told us are presumed to be what reasonableness means?

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 2d
What should the rules be for searching the computers? And what are they now? Does anything stop the government from searching and using everything? Read my book, "The Digital Fourth Amendment," for the answers.
www.amazon.com/Digital-Four...

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 2d
"FBI executes search warrant at Washington Post reporter’s home," via Wapo.
washingtonpost.com/national-sec...

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 2d
You realize that the issue in the case was a technical question about whether the requirements of City of LA v. Lyons were satisfied to allow an injunction, *not* whether the government had violated the Fourth Amendment, right?

orinkerr.bsky.social
Orin Kerr @orinkerr.bsky.social · 2d
There was a lot of 18th C legal history on the question; no one engages with it. J. Gorsuch is the only one who even talks about the history, but he offers a new theory that you can use the law of private parties instead of the known common law rules for govt as the standard.