When Orin Kerr (MS ’94) arrived for his first day at the Department of Justice in 1998, the world was buzzing with dot-com optimism. “Cybercrime” was just beginning to enter the legal lexicon, and Kerr—a Harvard Law graduate and fresh out of a clerkship—was thrilled to have landed a job as a federal prosecutor.

“I showed up at the office, and they said, ‘Where are you going?’ I said, ‘Here. I was hired.’ And they said, ‘Ah, we were afraid of that.’”

Someone at the DOJ had filled out the wrong form. They hadn’t meant to hire him, only to interview him, but by the time the mistake had been discovered, it was too late. “They made it absolutely clear they did not intend to hire me,” he says, laughing. “But they couldn’t fire me because there was apparently no form to fire me.”

That bureaucratic blunder, which landed him in the DOJ’s fledgling computer crime section, turned Kerr from a rookie prosecutor into one of the early architects of modern computer crime law. Today, he is widely considered the country’s go-to authority on how the Fourth Amendment’s protections against unreasonable searches and seizures apply in the digital age.

In his recently published book, The Digital Fourth Amendment: Privacy and Policing in Our Online World (Oxford University Press), Kerr distills 15 years of scholarship on his groundbreaking equilibrium-adjustment theory—the idea that as technology evolves, judges instinctively recalibrate the Fourth Amendment to balance privacy and government power. The book has drawn wide praise, including from Robert Barnes, former Supreme Court reporter for The Washington Post, who wrote that “everyone from journalists to Supreme Court justices turn to Kerr for clear-eyed, even-handed analysis and this thoughtful book shows why.”

“Very few people work at the intersection of technology and criminal law,” Kerr says. “They’re traditionally two separate paths, but I happened to end up there by coincidence at DOJ, and it seemed important. No one else was doing it, so I jumped in.”

Scholarship with a purpose

Luckily, when Kerr showed up to start his job at Stanford Law School, there was no mix-up. “It’s been fabulous,” he says of his first year teaching criminal procedure and computer crime law. “The students are incredible. So smart and engaged. When I held my first office hours, a huge number of students showed up. I thought I’d done something wrong, but they just wanted to keep talking about the material.”

Kerr, who taught at UC Berkeley Law for six years before joining the Stanford faculty, has a pragmatic approach to legal scholarship, one aimed more at courts and practitioners than at academics. “A lot of professors write for other professors,” he says. “I want my work to matter to the real world.” That approach has made him one of the most-cited legal scholars in the nation in the areas of criminal law and procedure. His scholarship includes 80-plus law review articles, more than half of which have been cited in judicial opinions, including eight articles referenced in U.S. Supreme Court decisions. He wrote Computer Crime Law, the first casebook dedicated entirely to computer crime law, and is a co-author of a leading criminal procedure treatise.

“ Everyone wants the Fourth Amendment to keep doing its job, even as the world changes.”
Professor Orin Kerr (MS ’94)

Robert Weisberg, JD ’79, Edwin E. Huddleson Jr. Professor of Law and faculty co-director of the Stanford Criminal Justice Center, calls Kerr “a scholar whose work has long shaped the field.” “For many years,” Weisberg says, “academics and lawmakers everywhere have devotedly relied on Orin’s writing on criminal law and procedure, with its combination of rigorous and fair-minded legal analysis, clarity of thought and expression, technical expertise, and deep practical wisdom. It’s an exciting bonus for the Stanford Law faculty to have him as a colleague and for our students to have him as a teacher and mentor.”

Preserving institutions and principles

Kerr, who studied mechanical engineering at Princeton and Stanford, introduced his equilibrium-adjustment theory in a 2011 Harvard Law Review article, “An Equilibrium-Adjustment Theory of the Fourth Amendment.” In that landmark piece, he revealed a recurring judicial instinct hiding in plain sight: When technological change upsets the balance between privacy and police power, courts recalibrate Fourth Amendment rules to restore the prior equilibrium.

In other words, when new technology suddenly tilts power toward the government—GPS tracking, mass data collection, automated location history—courts respond by beefing up Fourth Amendment protections. When inventions such as the automobile have made it substantially harder for police to rapidly secure a warrant, courts similarly relax certain rules to facilitate investigations.

“It’s a judicial instinct that cuts across ideological lines,” Kerr explains. “Justice Scalia did it as much as Justice Brennan. Everyone wants the Fourth Amendment to keep doing its job, even as the world changes.”

Kerr says he’s drawn to legal theories that are intuitive and widely shared, frameworks that make sense across the political spectrum and focus on preserving the Constitution’s role over time. He describes this outlook as “Burkean conservative,” grounded in respect for enduring institutions and skeptical of abrupt legal shifts. “We have long-standing institutions and principles,” he says. “The challenge is how to adapt them to new environments without losing their core.”

A forthcoming article continues Kerr’s extensive exploration of how traditional Fourth Amendment concepts like reasonableness and particularity translate when computers, not humans, do the searching. “Data Scanning and the Fourth Amendment” tackles the constitutional issues at play when law enforcement searches vast troves of digital information. The act itself of querying those databases is constitutionally significant. “If an algorithm scans a billion files and finds nothing, is that a ‘search’? Courts don’t agree,” says Kerr. “It is a fun puzzle.” SL