Penalty Default Rules for Digital Searches: Why Courts Should Spur Legislative Action via Second-Order Regulation

We live in a data-rich age. But Fourth Amendment doctrines have failed to adapt to our current reality. Legal principles that evolved to cabin the scope of physical searches seldom constrain searches of digital devices. As a result, a warrant to search a digital device gives police officers unfettered access to all of our information. While many scholars have argued that courts should address this problem by adopting rules that directly limit the scope of digital searches, this Comment argues that some courts have already eschewed this approach in favor of rules that encourage legislatures to regulate digital searches. Legislative regulation of digital searches is preferable because the legislative branch is better equipped to deal with a rapidly evolving technological landscape. Unfortunately, however, courts have not gone about incentivizing legislative action effectively. This Article posits that if courts want to encourage legislatures to act, they should adopt a penalty default rule that disadvantages the police. Specifically, courts should temporarily ban the plain view doctrine during searches of digital devices until legislatures limit the scope of digital searches.