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The Association Game: Applying Noscitur a Sociis and Ejusdem Generis

The Supreme Court has applied noscitur a sociis, often called the associated words canon, in many notable decisions—including the recent Fischer v. United States. This canon has a longstanding history in American jurisprudence, but interpreters face challenges in finding a common theme among words or phrases and supporting it with surrounding context. And some scholars argue judges can use noscitur to bring in external policy preferences and ideological beliefs. This Note proposes several steps to guide the use of noscitur and, by extension, its cousin ejusdem generis, including the clear identification of an association and multiple common themes and principles for transparent contextual analysis. These steps can shield judges from the appearance of guesswork or ideologically influenced decisions and encourage more accurate results by providing a clear roadmap of these canons’ proper application. They may also bring interpreters of all methodologies closer to their interpretive goals.

Introduction

What do the words “bud,” “mate,” “pal,” and “partner” have in common? According to the New York Times Connections puzzle on August 15, 2024, the answer is . . . nothing.1 1.Wyna Liu, Connections No. 431, N.Y. Times (Aug. 15, 2024), https://www.nytimes.com/‌games/connections/2024-08-15.Show More Connections, a fairly recent addition to the Times’s growing portfolio of games, asks readers to sort sixteen different words or phrases into four categories of four.2 2.SeeJoyann Jeffrey,Connections Is the NYT’s New Wordle Alternative. Here’s How to Play, Today (Aug. 29, 2023, 10:30 AM), https://www.today.com/popculture/connections-nyt-puzzle-how-to-play-rcna102300. The New York Times crossword has entertained readers since the early 1940s. David W. Dunlap, Birth of the Crossword, N.Y. Times (Dec. 17, 2022), https:/‌/www.nytimes.com/2022/12/17/insider/first-crossword.html. In recent years, the Times has added several different puzzles to go along with the crossword, including Connections. N.Y. Times Co., Games, https://www.nytco.com/products/games/ [https://perma.cc/85CZ-75KW] (last visited Mar. 28, 2025).Show More The puzzle relies on tricking readers with a number of different possible categories. For instance, in that August 15 scenario, “PARTNER” and “MATE” actually went with “COMPLEMENT” and “MATCH” under the common theme “OTHER HALF.”3 3.See Liu, supra note 1.Show More “BUD” connected with “NATTY,” “SIERRA,” and “STELLA” under “BEERS, FAMILIARLY.” “PAL” fell into “WORDS AFTER ‘PAY’” with “DIRT,” “CHECK,” and “PHONE.”4 4.Id. The final category was “BREADTH,” featuring “EXTENT,” “RANGE,” “REACH,” and “SCOPE.” Id.Show More

The Connections example shows that identifying a common theme among words can be a difficult process—even an impossible one—without context. Unless you knew the rules of the game, you probably would struggle to arrive at the desired common themes. And you would also find it difficult to explain your thought process to a friend without telling them that you need four categories of four.

Courts face a similar struggle in many cases of legal interpretation. They often must interpret a word or phrase as part of a list or grouping, and sometimes the meaning of that word or phrase is not immediately obvious. That is where the tool of noscitur a sociis comes in. Noscitur a sociis literally translates from Latin to “it is known by its associates.”5 5.Noscitur a sociis, Black’s Law Dictionary (12th ed. 2024). This Note usually refers to the canon simply as noscitur and to its relative ejusdem generis as ejusdem.Show More In essence, associated words or phrases around the target word or phrase can influence its meaning.6 6.Id.Show More

Take the Connections puzzle for a simple example. If you found a list in a sentence that read “BUD, MATE, PAL, or PARTNER,” you would probably assume that “BUD” referred to “buddy.”7 7.See Bud, Merriam-Webster, https://www.merriam-webster.com/dictionary/bud [https://pe‌rma.cc/Q4DQ-CLS5] (last visited Mar. 28, 2025).Show More But if the list instead read “BUD, NATTY, SIERRA, or STELLA,” you would likely think that “BUD” referred to the short name for a Budweiser. In neither instance would you think that “BUD” meant the beginnings of a flower on a plant (an otherwise perfectly acceptable meaning).8 8.Id.Show More Thus, the context of associated words influences the meaning of the target word.

Legal interpreters often face much more difficult instances of association. And unlike the small stakes of winning the Connections game, judges’ decisions can affect people’s lives, freedom, and finances. Those affected by judicial opinions deserve frank, thorough, and well-reasoned decisions. So, if those decisions in part come down to the application of noscitur—to most, an unfamiliar Latin phrase—interpreters ought to explain exactly how they used it and exactly how it informed their conclusions.

In addition, to use noscitur effectively, a court must thoroughly investigate the definitions of key words and conduct enough legwork to arrive at an accurate conclusion. It might be tempting for an interpreter to look at a group of words or phrases and claim, without much explanation, to have found the common theme. The answer is often not so simple. And in some recent instances, courts have failed to explain their application of noscitur with sufficient clarity to prove that their purported common theme is the best interpretation.9 9.See, e.g., infra notes 161–67, 262–68 and accompanying text.Show More

Perhaps this stems from a lack of documentation about noscitur. Existing literature, aside from major casebooks, has not provided much help for interpreters seeking advice on applying the canon.10 10.See, e.g., Caleb Nelson, Statutory Interpretation 117–20 (2d ed. 2024).Show More Apart from the well-known handbook Reading Law by Justice Antonin Scalia and Professor Bryan Garner, no article has yet centered on guidelines for courts using noscitur.11 11.See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012). For instance, a search of the HeinOnline Law Journal Library on November 30, 2024, for “noscitur” in the title of pieces revealed only two articles, neither of which took this tack. See generally David A. Schlesinger, Chevron Unlatined: The Inapplicability of the Canon Noscitur a Sociis Under Prong One of the Chevron Framework, 5 N.Y.U. Env’t L.J. 638 (1996) (discussing why noscitur should not be used under prong one of the Chevron doctrine); Keegan P. Dennis, Noscitur a Sociis: We Will Never Be the Same, 47 S. Ill. U. L.J. 485 (2023) (reflecting on attending law school during the COVID-19 pandemic).Show More Even Reading Law spends a mere four pages on noscitur as compared to fifteen on a subset of the canon, ejusdem generis.12 12.Scalia & Garner, supra note 11, at 195–98, 199–213.Show More So the general principles underlying noscitur have not received the treatment they deserve.

This Note seeks to fill that gap by presenting a model for courts planning to employ the noscitur canon—and by extension its relative ejusdem—in legal interpretation.13 13.I often refer to these canons together as the “association canons.” Since ejusdem also relies on finding a common theme among words or phrases, this Note’s conclusions apply to both canons. But there are several unique aspects of ejusdem that require further discussion throughout.Show More Part I highlights the history and importance of the canon and its use in the notable recent case Fischer v. United States, which concerned a law applied to defendants in the January 6 riot.14 14.144 S. Ct. 2176, 2181–82 (2024).Show More Part II dives into concerns with noscitur’s application. Several notable scholars have argued that it may open the door to the influence of policy preferences or ideology.15 15.See infra notes 68–79 and accompanying text.Show More And the principle behind noscitur naturally implies several difficulties: the presence of multiple potential common traits, an undefined trigger, and a possible deviation from dictionary meaning. Part III then answers these concerns, building a model for applying noscitur. This model strongly encourages courts to explain the canon’s use in detail, including its relationship with the ordinary meaning of each word or phrase involved. It urges interpreters to be thorough, since a more detailed explanation wards off possible accusations of ideological influence. Part IV then revisits Fischer with this model in mind, examining the majority and dissenting opinions and their relationship with the model. It concludes that Fischer did not apply the association canons in the traditional way, and that the Court missed an opportunity to do so.

  1.  Wyna Liu, Connections No. 431, N.Y. Times (Aug. 15, 2024), https://www.nytimes.com/‌games/connections/2024-08-15. ↑
  2.  See Joyann Jeffrey, Connections Is the NYT’s New Wordle Alternative. Here’s How to Play, Today (Aug. 29, 2023, 10:30 AM), https://www.today.com/popculture/connections-nyt-puzzle-how-to-play-rcna102300. The New York Times crossword has entertained readers since the early 1940s. David W. Dunlap, Birth of the Crossword,
    N.Y.

    Times (Dec. 17, 2022), https:/‌/www.nytimes.com/2022/12/17/insider/first-crossword.html. In recent years, the Times has added several different puzzles to go along with the crossword, including Connections.

    N.Y.

    Times Co

    .,

    Games, https://www.nytco.com/products/games/ [https://perma.cc/85CZ-75KW] (last visited Mar. 28, 2025). ↑

  3.  See Liu, supra note 1. ↑
  4.  Id. The final category was “BREADTH,” featuring “EXTENT,” “RANGE,” “REACH,” and “SCOPE.” Id. ↑
  5.  Noscitur a sociis, Black’s Law Dictionary

    (12th ed. 2024). This Note usually refers to the canon simply as noscitur and to its relative ejusdem generis as ejusdem. ↑

  6.  Id. ↑
  7.  See Bud, Merriam-Webster, https://www.merriam-webster.com/dictionary/bud [https://pe‌rma.cc/Q4DQ-CLS5] (last visited Mar. 28, 2025). ↑
  8.  Id. ↑
  9.  See, e.g., infra notes 161–67, 262–68 and accompanying text. ↑
  10.  See, e.g., Caleb Nelson, Statutory Interpretation 117–20 (2d ed. 2024). ↑
  11.  See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012). For instance, a search of the HeinOnline Law Journal Library on November 30, 2024, for “noscitur” in the title of pieces revealed only two articles, neither of which took this tack. See generally David A. Schlesinger, Chevron Unlatined: The Inapplicability of the Canon Noscitur a Sociis Under Prong One of the Chevron Framework, 5 N.Y.U. Env’t L.J
    .

    638 (1996) (discussing why noscitur should not be used under prong one of the Chevron doctrine); Keegan P. Dennis, Noscitur a Sociis: We Will Never Be the Same, 47 S. Ill. U. L.J

    .

    485 (2023) (reflecting on attending law school during the COVID-19 pandemic). ↑

  12.  Scalia & Garner, supra note 11, at 195–98, 199–213. ↑
  13.  I often refer to these canons together as the “association canons.” Since ejusdem also relies on finding a common theme among words or phrases, this Note’s conclusions apply to both canons. But there are several unique aspects of ejusdem that require further discussion throughout. ↑
  14.  144 S. Ct. 2176, 2181–82 (2024). ↑

  15.  See infra notes 68–79 and accompanying text. ↑

Neo-Brandeis Goes to Washington: A Provisional Assessment of the Biden Administration’s Antitrust Record

Introduction

In early 2021, a new coterie of trustbusters came to Washington with the stated purpose of radically overhauling the antitrust status quo. The three central figures—Federal Trade Commission (“FTC”) Chair Lina Khan, Department of Justice (“DOJ”) Antitrust Division Assistant Attorney General (“AAG”) Jonathan Kanter, and Special Assistant to the President for Technology and Competition Policy in the White House Tim Wu—were self-identified neo-Brandeisians, committed to returning antitrust policy to a contemporary version of Justice Louis Brandeis’s ideas.1 1.See generally Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Competition L. & Prac. 131 (2018) (describing the history and merits of the “New Brandeis School’s” philosophy and approach to antitrust policy); Zephyr Teachout, “The Long Future of the Neo-Brandeisian Movement, in Three Parts,” Network L. Rev. (July 24, 2024), https://www.networklawreview.org/teachout-future-neobrandeis/ [https://perma.cc‌/KWN3-J62J] (identifying Khan, Kanter, and Wu as key neo-Brandeisian figures).Show More At the urging of Senator Elizabeth Warren, President Biden turned over his Administration’s antitrust policy to the neo-Brandeisians,2 2.Fred Lucas, Antitrust and Economic Leaders Have Links to Elizabeth Warren, D.C.J. (Dec. 6, 2023), https://www.dcjournal.com/antitrust-and-economic-leaders-have-links-to-eliz‌abeth-warren/ [https://perma.cc/UW5Z-5EAE].Show More who vowed to break antitrust’s reigning consumer welfare standard, retool competition policy to protect other interests such as labor and small business, and significantly expand scrutiny of corporate power, particularly as to Big Tech.3 3.Exec. Order No. 14,036, 3 C.F.R. 609 (2022).Show More

Four years later, as the neo-Brandeisians retreat from Washington in the wake of a new administration, it is fitting to take stock of what actually happened in those four years. Given the soaring political salience of antitrust during the Biden Administration, there is already a rush to define the narrative regarding the neo-Brandeisians’ time in the nation’s capital.4 4.See, e.g., Press Release, New Economic Liberties Report Takes a Close Look at Biden and Trump Antitrust Records, Am. Econ. Liberties Project (Oct. 30, 2024), https://www.economic‌liberties.us/press-release/new-economic-liberties-report-takes-a-close-look-at-biden-and-tru‌mp-antitrust-records/ [https://perma.cc/B2JY-7N2K]; Will Norris, Trump vs. Biden: Who Got More Done on Antitrust?, Wash. Monthly (Apr. 7, 2024), https://washingtonmonthly.com/20‌24/04/07/trump-vs-biden-who-got-more-done-on-antitrust/ [https://perma.cc/3W9T-YJPE].Show More Inquiring people want to know, and manipulative people want to manipulate.

This Essay attempts to answer the “what really happened?” question with two points. First, from an immediate perspective, the revolution did not happen. On a statistical level, the neo-Brandeisians did not increase antitrust enforcement, and in many ways were less rigorous in bringing antitrust cases than previous administrations. (The reader should wait for more full explorations below before overreacting to this claim.) On a qualitative level, the neo-Brandeisians did attempt dramatic reform in many ways—jettisoning existing policies, implementing new, interventionist ones, advancing novel or “edgy” theories in merger and non-merger cases, and, especially, testing the FTC’s rulemaking authority through an aggressive rule prohibiting employment non-compete agreements.5 5.See infra Subsection I.A.1; infra Paragraph I.A.2.ii; infra Sections I.B, I.D.Show More But the neo-Brandeisians leave Washington with relatively little to show for these efforts. With some important exceptions, they were not successful in advancing their “edgy” theories, they did not bring and litigate to conclusion a single civil non-merger case, and the non-compete rule has been nationally enjoined and faces grim future prospects.6 6.See infra Paragraph I.A.2.ii; infra Sections I.B, I.D.Show More

Countervailing the first point, this Essay’s second point is that it is far too early to draw robust conclusions about the success or failure of the neo-Brandeisians’ attempted revolution. For one, some of the data regarding the last year or months of the Biden Administration are not yet available,7 7.See Competition Enforcement Database, U.S. Fed. Trade Comm’n [hereinafter FTC Competition Enforcement Database], https://www.ftc.gov/competition-enforcement-database [https://perma.cc/3AY9-R4WQ] (last visited Aug. 30, 2025) (showing that data for fiscal year 2024 is not yet published).Show More and several of the significant lawsuits brought by the Administration are still pending.8 8.See, e.g., Order, United States v. Apple, Inc., No. 24-cv-04055 (D.N.J. June 30, 2025) (denying Apple’s motion to dismiss); Memorandum Opinion and Order, United States v. Visa, Inc., No. 24-cv-07214 (S.D.N.Y. June 23, 2025) (denying Visa’s motion to dismiss).Show More That may take many more years. But there is an even more significant point about the need for patience: the neo-Brandeisians came to political power very early in the trajectory of their movement (perhaps too early for their own good).9 9.See infra notes 203–05 and accompanying text.Show More By comparison, the last revolutionary antitrust movement—the Chicago School—spent decades building its agenda through scholarship and socialization of its ideas to law students, lawyers, and judges before it achieved success in the courts and antitrust agencies.10 10.See infra notes 200–02 and accompanying text.Show More It is far too early to say what the ultimate outcome and influence of the neo-Brandeisian challenge, including the seeds sown in the last four years, will be. So, while answers to short-term questions about what the neo-Brandeisians did in Washington are largely available, any assessment must remain provisional for several decades to come.

  1.  See generally Lina Khan, The New Brandeis Movement: America’s Antimonopoly Debate, 9 J. Eur. Competition L. & Prac. 131 (2018) (describing the history and merits of the “New Brandeis School’s” philosophy and approach to antitrust policy); Zephyr Teachout, “The Long Future of the Neo-Brandeisian Movement, in Three Parts,” Network L. Rev. (July 24, 2024), https://www.networklawreview.org/teachout-future-neobrandeis/ [https://perma.cc‌/KWN3-J62J] (identifying Khan, Kanter, and Wu as key neo-Brandeisian figures). ↑
  2.  Fred Lucas, Antitrust and Economic Leaders Have Links to Elizabeth Warren, D.C.J. (Dec. 6, 2023), https://www.dcjournal.com/antitrust-and-economic-leaders-have-links-to-eliz‌abeth-warren/ [https://perma.cc/UW5Z-5EAE]. ↑
  3.  Exec. Order No. 14,036, 3 C.F.R. 609 (2022). ↑
  4.  See, e.g., Press Release, New Economic Liberties Report Takes a Close Look at Biden and Trump Antitrust Records, Am. Econ. Liberties Project (Oct. 30, 2024), https://www.economic‌liberties.us/press-release/new-economic-liberties-report-takes-a-close-look-at-biden-and-tru‌mp-antitrust-records/ [https://perma.cc/B2JY-7N2K]; Will Norris, Trump vs. Biden: Who Got More Done on Antitrust?, Wash. Monthly (Apr. 7, 2024), https://washingtonmonthly.com/20‌24/04/07/trump-vs-biden-who-got-more-done-on-antitrust/ [https://perma.cc/3W9T-YJPE]. ↑
  5.  See infra Subsection I.A.1; infra Paragraph I.A.2.ii; infra Sections I.B, I.D. ↑
  6.  See infra Paragraph I.A.2.ii; infra Sections I.B, I.D. ↑
  7.  See Competition Enforcement Database, U.S. Fed. Trade Comm’n [hereinafter FTC Competition Enforcement Database], https://www.ftc.gov/competition-enforcement-database [https://perma.cc/3AY9-R4WQ] (last visited Aug. 30, 2025) (showing that data for fiscal year 2024 is not yet published). ↑
  8.  See, e.g., Order, United States v. Apple, Inc., No. 24-cv-04055 (D.N.J. June 30, 2025) (denying Apple’s motion to dismiss); Memorandum Opinion and Order, United States v. Visa, Inc., No. 24-cv-07214 (S.D.N.Y. June 23, 2025) (denying Visa’s motion to dismiss). ↑
  9.  See infra notes 203–05 and accompanying text. ↑
  10.  See infra notes 200–02 and accompanying text. ↑

Fourth Amendment Trespass and Internet Search History

Browsing the internet is an everyday activity for many Americans. Law enforcement has capitalized on this reality by employing a novel investigative technique: reverse keyword search warrants. Keyword warrants allow investigators to obtain detailed information from search engine companies about any internet user who entered a specific phrase into the search engine. In recent years, the constitutionality of these warrants has sparked growing debate. Underlying this debate rests a critical threshold question: Does the Fourth Amendment require the government to obtain a valid warrant before accessing a person’s internet search data? Thus far, three courts have addressed the question, all reaching different conclusions.

One reason for the lack of consensus is that these courts have relied exclusively on the “reasonable expectation of privacy” test to determine whether a warrant is required to access search data. This Essay explains why assessing search data under the privacy framework leads to muddled analysis and contradictory conclusions, contributing to constitutional uncertainty. We urge courts to look instead to the traditional trespass test set out in United States v. Jones to determine whether the Fourth Amendment protects search data. By analyzing the issue through the lens of trespass, this Essay reaches a clear answer: accessing search data is a Fourth Amendment search. In doing so, this Essay adds urgency to the keyword warrant debate, advances Fourth Amendment doctrine in a rapidly evolving technological landscape, and helps realize the full protections of that constitutional guarantee.

Introduction

On July 19, 2016, someone broke into a Pennsylvania home and assaulted the woman living there.1 1.See Commonwealth v. Kurtz, 294 A.3d 509, 516–17 (Pa. Super. Ct. 2023), appeal docketed, 306 A.3d 1287 (Pa. 2023).Show More After spending two months exhausting their physical leads, law enforcement was still without a suspect.2 2.See Appellee’s Brief at 7–8, 12, Kurtz, 294 A.3d 509 (No. 811 MDA 2021).Show More So, investigators turned to Google.3 3.Kurtz, 294 A.3d at 517.Show More Specifically, they obtained a warrant directing Google to disclose detailed information associated with any user who searched the victim’s name or home address in the week preceding the attack.4 4.Id.Show More This novel investigative technique, known as a “keyword warrant,”5 5.Both throughout the literature and within this Essay, “keyword warrants” are referred to interchangeably as “keyword search warrants” or “reverse keyword search warrants.” For additional discussion regarding the mechanics of keyword warrants, see Helen Winters, Note, An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants, 107 Minn. L. Rev. 1369, 1387–89 (2023).Show More led investigators to John Edward Kurtz, who was later charged and convicted.6 6.Kurtz, 294 A.3d at 516–18.Show More On appeal, Kurtz challenged the warrant as unconstitutional, arguing that its omission of a named suspect violated the Fourth Amendment’s probable cause and particularity requirements.7 7.Appellant’s Brief at 12, 19, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). The constitutionality of keyword warrants has received significant attention. Some commentators have argued that keyword warrants are unconstitutional general warrants. See Chelsa Camille Edano, Comment, Beware What You Google: Fourth Amendment Constitutionality of Keyword Warrants, 97 Wash. L. Rev.977, 1000–02 (2022); Brian L. Owsley, Searching a Person’s Thoughts: Keyword Search Warrants and Fourth Amendment Concerns, 28 Stan. Tech. L. Rev.66, 102–03 (2025). Others have articulated theories supporting the warrants’ constitutionality. SeeMary D. Fan, Big Data Searches and the Future of Criminal Procedure, 102 Tex. L. Rev. 877, 925–27 (2024).Show More The constitutional sufficiency of the warrant was ultimately irrelevant to the case, however, because the court held that government access to Kurtz’s search data was not a search at all.8 8.Kurtz, 294 A.3d at 522.Show More Thus, no valid warrant was required to obtain his search data.9 9.The Fourth Amendment’s protections are not triggered unless a search or seizure occurs. County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998).Show More

Commonwealth v. Kurtz raises a pressing question: Can the police access your internet search history without a warrant? Because it is not clear that a keyword warrant can ever be validly issued, the constitutionality of keyword searches may depend on the threshold question of whether it is a Fourth Amendment “search” that requires a warrant.10 10.See supra note 7.Show More As of this writing, however, no consensus answer has emerged: three state courts have addressed the question, and they have all reached different conclusions.11 11.Compare Kurtz, 294 A.3d at 522 (finding that no Fourth Amendment search occurred when the government used a keyword warrant), with People v. Seymour, 536 P.3d 1260, 1272 (Colo. 2023) (finding that a keyword warrant constitutes a search, but only under Colorado’s Constitution and not the Fourth Amendment), and Commonwealth v. Clements, 113 Va. Cir. 576, 591 (2024) (finding that the government engaged in a Fourth Amendment search when it employed a keyword warrant). No federal court has published an opinion addressing the question.Show More One reason for this uncertainty is that courts have relied on the familiar “reasonable expectation of privacy” framework to answer the threshold search question.12 12.See Kurtz, 294 A.3d at 521–23 (engaging exclusively with the Katz reasonable expectation of privacy framework when considering whether a keyword warrant is a search); Seymour, 536 P.3d at 1270–72 (same); Clements, 113 Va. Cir. at 590–91 (same).Show More

This Essay seeks to change that. Part I explains why applying the reasonable expectations test to search data produces contradictory results. Part II urges courts to look instead to the traditional trespass test endorsed in United States v. Jones to determine whether the Fourth Amendment protects search data. Though the Supreme Court has never applied the trespass test to intangible property, we explain why adopting this approach in the context of search data is consistent with Fourth Amendment jurisprudence and produces a clear answer: accessing search data is a search. Finally, Part III addresses the limitations of our trespass analysis and explores its impact on existing case law.

  1.  See Commonwealth v. Kurtz, 294 A.3d 509, 516–17 (Pa. Super. Ct. 2023), appeal docketed, 306 A.3d 1287 (Pa. 2023). ↑
  2.  See Appellee’s Brief at 7–8, 12, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). ↑
  3.  Kurtz, 294 A.3d at 517. ↑
  4.  Id. ↑
  5.  Both throughout the literature and within this Essay, “keyword warrants” are referred to interchangeably as “keyword search warrants” or “reverse keyword search warrants.” For additional discussion regarding the mechanics of keyword warrants, see Helen Winters, Note, An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants, 107 Minn. L. Rev. 1369, 1387–89 (2023). ↑
  6.  Kurtz, 294 A.3d at 516–18. ↑
  7.  Appellant’s Brief at 12, 19, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). The constitutionality of keyword warrants has received significant attention. Some commentators have argued that keyword warrants are unconstitutional general warrants. See Chelsa Camille Edano, Comment, Beware What You Google: Fourth Amendment Constitutionality of Keyword Warrants, 97 Wash. L. Rev.

    977, 1000–02 (2022); Brian L. Owsley, Searching a Person’s Thoughts: Keyword Search Warrants and Fourth Amendment Concerns, 28 Stan. Tech. L. Rev.

    66, 102–03 (2025). Others have articulated theories supporting the warrants’ constitutionality. See Mary D. Fan, Big Data Searches and the Future of Criminal Procedure, 102 Tex. L. Rev.

    877, 925–27 (2024).

    ↑

  8.  Kurtz, 294 A.3d at 522. ↑
  9.  The Fourth Amendment’s protections are not triggered unless a search or seizure occurs. County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998). ↑
  10.  See supra note 7. ↑
  11.  Compare Kurtz, 294 A.3d at 522 (finding that no Fourth Amendment search occurred when the government used a keyword warrant), with People v. Seymour, 536 P.3d 1260, 1272 (Colo. 2023) (finding that a keyword warrant constitutes a search, but only under Colorado’s Constitution and not the Fourth Amendment), and Commonwealth v. Clements, 113 Va. Cir. 576, 591 (2024) (finding that the government engaged in a Fourth Amendment search when it employed a keyword warrant). No federal court has published an opinion addressing the question. ↑
  12.  See Kurtz, 294 A.3d at 521–23 (engaging exclusively with the Katz reasonable expectation of privacy framework when considering whether a keyword warrant is a search); Seymour, 536 P.3d at 1270–72 (same); Clements, 113 Va. Cir. at 590–91 (same). ↑
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