Solove v. Kerr on the Fourth Amendment and New Technologies:

In a forthcoming symposium issue of the Fordham Law Review, my colleague Dan Solove and I debate the relative merits of constitutional rules versus statutory rules in the area of online privacy. The basic question is this: Which branch of government is likely to generate better rules regulating police investigations when technology is rapidly changing? The legislature or the judiciary?

  Last year, I argued in an article called “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution” that Congress has the institutional advantage over courts, and would likely generate better and more balanced rules. Now Dan has responded, arguing that I am all wrong, and I have replied to his response (or did I respond to his reply? I can never remember such things).

  Anyway, you can read Dan’s paper here: “Fourth Amendment Codification and Professor Kerr’s Misguided Call for Judicial Deference“. You can read my short response to Solove (13 pages) here: “Congress, the Courts, and New Technologies: A Response to Professor Solove“.