Orin Kerr
@orinkerr.bsky.social
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
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%
This creates a practical way out of a theory, in that no one pays much attention when a Justice with one set of theoretical commitments joins opinions based on different commitments reaching results that may be difficult or impossible to justify based on the joining Justice's professed theory. /2
One reason I'm skeptical of grand theories of constitutional interpretation is that Supreme Court Justices do not write opinions in most cases. They usually join the opinions of others. /1
fbi-washington-post-lockdown-mode
www.documentcloud.org
Referenced doc is here: www.documentcloud.org/documents/26...
FBI Couldn’t Get into WaPo Reporter’s iPhone Because It Had Lockdown Mode Enabled." 404media.co/fbi-couldnt-...
And finally, even if we did demand the time machine, there *still* wouldn't be an obligation to disclose, as the magistrate judge has no legal authority to consider the PPA issue in reviewing the warrant application anyway. It's only a liability issue (w/a good faith exception) for searchers. /3
Even if this weren't the case, we don't normally expect lawyers to have time machines, travel to the future, see if or how a court ruled on a First Amendment issue, and then retroactively have an ethical obligation to disclose a statute that doesn't apply. /2
I think that's probably the theort, but it's a lame theory. The warrant power extends to contraband, wherever it is, regardless of whether it's associated with a crime. If someone builds a meth lab in your basement, and you don't know of it, you're not guilty—but they can still get a warrant. /1
And even if that was somehow deemed the rule ex post, it's hard to see why there would be an ethical obligation to disclose a non-existent PPA issue ex ante— an issue that the judge is powerless to consider in reviewing the warrant anyway—just out of a concern about a future change in the law. /5
Imagine hypothetically that, someday, courts say reporters can't be prosecuted for CSAM collected as part of their stories. If that's the case, it wouldn't mean that warrants couldn't be used to recover the CSAM; it would just mean reporters couldn't be prosecuted for the possession. /4
Maybe this is easiest to see with a different crime also in that statutory exception list, for CSAM offenses. Congress wanted to authorize a warrant to get the CSAM, even if a reporter was possessing the CSAM for a story, because it's contraband. /3
Whether there is evidence or contraband to be recovered from a search is unrelated to whether a particular person can be prosecuted for possession of that thing constitutionally—or here, if new law is handed down to say that the person can't be prosecuted. /2
You're missing the text of the statute: "a search or seizure may be conducted under the provisions of this paragraph if the offense consists of" classified docs. It doesn't matter if the prosecution is, someday, held to violate the First Amendment. /1
I don't think that's right, as the final exception says it's allowed "under this paragraph," not allowed only as an exception to the proceeding phrase. I don't think the NYT article disputes this.
The statute has an explicit exception for classified documents cases; as long as the search involves that statute, there's no PPA liability.
And even if it could expand the statute, the law imposes civil liability on the searchers-- it doesn't prohibit the search. The magistrate can't decide not to approve the warrant application out of concern that the search might incur civil liability, so there's no duty to disclose anyway.
The article even briefly mentions the exception that obviously renders the statute irrelevant (see the highlighted text) but then adds that there is a "catch"-- that some think the 1st Amendment applies. But how is that relevant to the ethical duty to disclose? It can't expand the statute.
The legal claim underlying this @nytimes.com article is just absolute nonsense. The law has an explicit statutory exception that clearly applies in this case. And even if it didn't, the PPA is not an "adverse authority," as it's utterly irrelevant to probable cause.
nytimes.com/2026/02/05/u...
nytimes.com/2026/02/05/u...
That's surprising to me based on the transcript. But I have never met her, so I'm in no position to divine her true motives.
Discussed up in the thread.
You're confusing statutory and constitutional authorization. No one disagrees that the Constitution allows this to be punished, but Congress has not legislated here to the full scope of the power the commerce clause allows.
Agreed, although it would not surprise me if there's nothing in the record on that.
It's pretty clear that intent doesn't matter, FWIW-- jurisdictional elements don't look to that either way.
Interested to see how this goes, as it could replace United States v. Kammersell in my Computer Crime Law casebook as the main case on statutory limits on the scope of federal computer crime laws. Kammersell was from '99, it's classic but getting a little old.
Interesting brief filed this week in the 4th Circuit: If a person sends a threat using a "contact us" prompt on a website in the same state, but the recipient logs in and reads it from another state, was the threat "transmitted in interstate commerce"?
drive.google.com/file/d/1BGxc...
drive.google.com/file/d/1BGxc...
Riley allows the phone to be seized, just not searched.
No, I don't have a copy of the opinion yet (I always provide a link if I have it). But if you find it, please link to it, thanks.
"Prosecutor Fired After Voicing Frustration With Immigration Caseload," @NYTimes reports. www.nytimes.com/2026/02/04/u...
Plaintiff: Officer shut the door on my leg during a traffic stop; it was excessive force.
8th Cir: No, this was reasonable force. The officer was arresting the driver, & plaintiff refused order to stay in the car; he was trying to keep her in. (Per Stras, J.)
ecf.ca8.uscourts.gov/opndir/26/02...
8th Cir: No, this was reasonable force. The officer was arresting the driver, & plaintiff refused order to stay in the car; he was trying to keep her in. (Per Stras, J.)
ecf.ca8.uscourts.gov/opndir/26/02...