I’m pleased to say that the final version of my latest law review article is now online: Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010). The abstract:
This Article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.
Leo Eko says:
Prof. Kerr,
Very informative and insightful article! How would your content/non-content distinction apply to surveillance of terrorist suspects under the PATRIOT act?
April 18, 2010, 11:44 pmtroll_dc2 says:
I am curious about the relationship between this blog and your article. Did your posts here help you clarify your thinking for the article, or did they reflect what you already had concluded away from the Internet? Did reader comments make any difference to any of your thoughts?
April 19, 2010, 11:39 amAnotherAnon says:
The content/non-content distinction seems to have two strengths. First, in pragmatic terms it suggests a mostly balanced and not unreasonable view of 4A protections (at least in comparison to some of the competing theories). Second, it has a certain analogical strength (particularly upon first impression). However, I do have both pragmatic and analogical concerns about such a distinction. First, a theory of 4A and the internet should address the unprecedented ways in which technology has transformed non-content surveillance (with regard to pervasiveness, practicality, and data fusion) precisely in order to remain technologically neutral and preserve the balance that has traditionally existed. It is not unreasonable to routinely observe the outside movements of one suspect, yet it could very well be unreasonable to routinely observe the outside movements of a very large number of people (a historically infeasible practice which technology has made more feasible). The same may well go for non-content data. Second, with regard to the analogy your distinction attempts to make, I would note that historically hand-delivered post and manually-operated switchboards made observation of non-content routing data (necessarily) very commonplace. However, observation of machine-processed routing data is hardly commonplace or even necessary for the function of modern digital communications. Doesn’t this – at the very least – alter expectations of what is reasonable? In conjunction with the recording and processing capabilities of modern comm hardware (which produce persistent and detailed records far beyond the ephemerality of yesteryear’s human recollections of non-content data processed while delivering post or operating switchboards), I don’t think it is unreasonable to suggest that a modern approach to non-content data must consider the context/consequences and not merely the abstract form of historical addressing practices when analogizing to digital communications.
April 19, 2010, 1:04 pmDenlen says:
The bottom line is correct — “… courts should require a search warrant that is particularized to individuals rather than Internet accounts..”.
Argument to that conclusion wanders a bit.
Essence of the 4th Amendment (fundamental guarantee of ‘The “right” of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures… ‘) is never mentioned.
Instead, much discussion of the 4th as primarily: ‘The right of the government to conduct reasonable searches’ … and what modest legal restrictions might be properly considered on that government “right” in view of 4th Amendment historical judicial technicalities.
This Law Review article casually notes (without the slightest hint of irony):
“Although Fourth Amendment cases often speak of a default warrant requirement, and of different rules as “exceptions” to the warrant requirement, the exceptions are so common that defaults are somewhat hard to identify..”
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April 19, 2010, 2:55 pmOrin Kerr says:
Denlen,
I’m curious: What does the essence of the Fourth Amendment mean, in your view?
April 19, 2010, 3:21 pmRiley says:
Great piece, it reminds me about the whole controversy going on now about people getting fired for using work computers for non-work related reasons. I ran into this post about it:
http://lawblog.legalmatch.com/2010/04/15/unauthorized-use-of-work-computers-it-might-get-you-fired-but-it%e2%80%99s-not-a-crime/
People can’t seem to understand that the office is no place for Facebook, it seems…
April 20, 2010, 2:21 amAultimer says:
Does your content v. non-content distinction put you outside the tent at digitaldueprocess.org? If so, how about a “debate” here on VC with David Post?
April 20, 2010, 10:18 amThe Fourth Amendment: Exceptional Or Fantastic? | Affirmative Links says:
[...] how do we apply this rule, this so called Fourth Amendment, to the virtual world? Orin “The Same As We Do Everywhere Else” Kerr and Scott “Have You Seen Everywhere Else Lately” Greenfield get into a bit of a [...]
April 20, 2010, 2:30 pmOliver says:
Professor Kerr,
I have followed your writings on this subject for some time now, and I was dismayed to see that you have apparently wholeheartedly adopted the cynical ‘reasonable expectations of privacy is just code for what we want police to be able to do’ theory (at 1037-38). Some judges may work that way, but I think that if you made that argument in open court you would be quickly gaveled to order. Imputing disingenuity to the judge is a very suspect way in which to dispatch the arguments of your third critic.
What’s worse is that it is unnecessary to be that cynical. The arguments in your article would still work if, instead, you characterized the inside/outside distinction as a genuine logical outgrown of the ‘reasonable expectations’ rule in Katz. Doing so would require that you take your third critic (1037) more seriously, though, and might require that you explicitly treat the inside/outside distinction as a standard instead of a rule. For example, I believe that my associations with “friends” on facebook are private — in fact, I have adjusted my “privacy” settings on facebook to ensure as much. That belief is supported by law (e.g. NAACP v. Patterson – precluding compelled disclosure of membership list). But these associations are not content, and therefore would not be considered ‘inside’ by someone applying the presumption in your article mechanically. This is an example of one way that treating inside/outside as a result of Katz, rather than a cynical replacement of it, would yield a different preliminary result.
Going a bit further, I would also like to respectfully suggest that perhaps your content/non-content distinction is based more on your normative sense of what internet uses “reasonable expectations of privacy” are than it is a straight analogy to inside/outside in the natural world. There is an easier alternative if all you really wanted was a perfectly neutral inside/outside analogy: if the government can get the information without the service provider’s help, it’s outside; otherwise, it’s inside (this is reflected in your footnote 97).
Imputing disingenuity to any general body of law is like dividing by zero in math–the result is you can fashion any argument you like, because the words the courts use don’t have to be taken seriously. I would implore you to reconsider. I have described above a way to understand your argument without having to call the judge a liar, and as some guy once said, “[assumptions] should not be multiplied beyond what is necessary.”
P.S. If you view Smith v. Maryland as a simple third party disclosure case (as I believe you have in other articles) I think you will conclude that it’s uncritical application to the internet would be like unleashing a bull in a china shop.
April 23, 2010, 2:12 pmDalton says:
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September 10, 2010, 10:57 pm