Interview: Digital Crimefighting and the Frontiers of the Law

(Originally published by the Hoover Institution on December 10, 2025.)

Hoover legal scholar Orin Kerr explores how the Fourth Amendment is being adapted to the online future.

Orin Kerr is a senior fellow at the Hoover Institution and a professor at Stanford Law School, where he teaches and writes on criminal law and criminal procedure. He helped found the field of computer crime law, which studies how traditional legal doctrines should adapt to digital crime and digital evidence, and is widely considered a leading authority on the Fourth Amendment. He spoke with Chris Herhalt about how the Fourth Amendment must adapt to the digital realm.

Chris Herhalt: Welcome to Hoover. What’s next for you, now that you’ve joined us? What do you think you’re going to explore?

Orin Kerr: I’m going to keep up what I’ve been doing, which is studying the shift to the world of digital crimes and digital evidence and digital evidence collection. My interest is this: how do you take a legal world that has been about physical crimes, physical evidence, and eyewitness testimony—like when the government comes into court with a gun or the drugs—and shift to a world where the government comes in with data? The crime itself may be an online crime, such as a computer intrusion or an online threat. What really interests me is how we translate the world of criminal law and criminal investigations to a digital realm—what institutions are a part of that, and what rules are a part of that. How do we adapt our very ancient criminal law system for the new technological world?

What attracts me to Hoover is it’s a great group of scholars with real-world impact and access to great minds that are thinking about these sorts of public policy questions. Because what interests me is not just the theory of these things, but how do we make this happen? How do we bring all the relevant players together in an open way and think through that shift?

Chris Herhalt: Here’s something I’ve thought about even before I started reading about your work: the plain-view exception. Is there a plain-view exception that extends to screened devices? If a member of law enforcement happens to “look over the shoulder” of a person in an investigation and see what’s on their screen, is that admissible? In that same vein, you’ve talked about the 2014 decision that held that police no longer had the automatic right to search devices upon arrest. If a device is left unlocked or if it is in law enforcement’s custody and a message comes in plain view that is tied to criminality, how are those sorts of things dealt with?

Orin Kerr: They can look at it.

Chris Herhalt: They can look at it.

Orin Kerr: This is relevant for lawyers who are working on materials out in public or people who have confidential documents for clients when they’re out in the world with laptops and cell phones. This also goes for speaking; some people are known to speak very loudly in crowded places and to talk about confidential issues. People should be very careful about that, lawyers and non-lawyers. But yes, basically they can access it.

Chris Herhalt: So, if a device has no countermeasures on it, they can look at it?

Orin Kerr: They can look at what is openly visible on the screen, but the government needs a search warrant to start looking through what is inside it. It’s just as protected as if it’s your postal mail or if it’s your home. It’s all protected by default. You have Fourth Amendment full rights in your digital devices. The real question with extra locks becomes what beyond the warrant requirement does the government have to do to bypass them.

Chris Herhalt: There have been national security cases where the device was so well protected that you almost never heard whether law enforcement succeeded in breaking it. Does the government need to seek additional judicial permissions to take more significant steps to break through?

Orin Kerr: It depends. There are a bunch of techniques the government uses to try to unlock locked devices. A lot of it is just technological means. There’s a vibrant market in unlocking tools. There are companies that sell unlocking tools to governments, and they try to bypass the encryption that locks the devices. So, the government might try that.

They sometimes also occasionally try—this is less common—getting the person to unlock the device for them under some sort of legal command. That’s where you get the legal question, the Fifth Amendment privilege. Can the government make you unlock your device? Can they put your thumb on the thumb reader or your face up to the face ID? That can raise some constitutional questions.