-- By Ava Guo - 04 Mar 2013

With the advent of computers and the internet, this Fourth Amendment right of people “to be secure in their persons” has been chipped away by the courts in an attempt to figure out what warrants protection in cyberspace. The problem with the Fourth Amendment is not that it is inherently incapable of accommodating electronic communications; it is that the courts have been so wrapped up in trying to fit the new world of the internet into an old mold of the physical world that they have completely ignored the uniqueness of cyberspace. I believe that as drafted, the Fourth Amendment had room to grow and could be revived. Instead of comparing electronic communications with speech or telephone calls, the courts should have looked to society’s actual expectations with respect to activities on the internet, and analyzed them under and the “reasonable expectation of privacy” test.

Katz v. United States

In Katz, federal agents taped a microphone to the top of a public pay phone booth that recorded the defendant’s side of his conversations. The court reasoned that the warrantless surveillance of the phone booth was impermissible, and more importantly, noted that the “Fourth Amendment protects people – and not simply “areas” – against unreasonable searches and seizures.” 389 U.S. 347, 352 (1967). This early analysis demonstrates that the Fourth Amendment was perfectly capable of extending its protections beyond physical places to people’s identities in cyberspace. In Justice Harlan’s concurrence, he articulates the “expectation of privacy” test as a twofold requirement. First, the individual must have an actual (subjective) expectation of privacy; and second, that expectation has to be one that society is prepared to recognize as “reasonable.” The Katz formulation has subsequently been adopted in various opinions of the court in relation to telephone calls, letters, electronic communications, and even GPS devices. In as recently as United States v. Jones, 132 S.Ct. 945 (2012), the Court reiterated the importance of Justice Harlan's concurrence as the standard in non-property-based searches and seizures, and emphasized that the Fourth Amendment protects a person's “reasonable expectation of privacy."

Old and New Reasonable Expectations of Privacy

In Hoffa v. United States, the defendant admitted his involvement in criminal activities to someone who turned out to be a government informer. The court held that as a result of this conversation, the defendant had no reasonable expectation of privacy in his communications because he assumed the risk that others may overhear and share it with others. 385 U.S. 293 (1966). Extending this to online communications, the court in State v. Moller held that the defendant had no expectation of privacy in an internet chatroom. 2002 WL 628634 (Ohio Ct. App. 2002). In this case, a police officer posed as a young girl and entered a chatroom for older men. The defendant contacted the officer to arrange a meeting with the “girl” for sexual activities. After defendant was arrested, he challenged the admission of his online communications as a violation of his Fourth Amendment rights. The court reasoned that just like an individual who has a conversation in public and within earshot of others, the defendant assumed the risk when he entered the public chatroom. It may be a subtle distinction to make but rather than comparing the chatroom to a crowded café, the court should have based its decision on the norms and expectations of a public internet chatroom. Indeed, the defendant should have had even less of an expectation of privacy in the chatroom because there is not only a risk that someone could “eavesdrop” on his conversation, but an absolute certainty that anyone else in the chatroom could and would read what he wrote.

Rather than relying on analogies, we could start from scratch and look to what society's expectations are with respect to electronic communications and the electronic storage of data. In doing so, we could use the Katz test as a guide and ask: (a) whether the individual has a subjective expectation of privacy; and (b) whether this expectation is one that we are prepared to recognize as reasonable. Much of our rules about third party storage in the real world come from the relationships between the parties and their expectations of privacy stemming from those relationships. For instance, renting a storage unit gives the renter the assurance that any search of the unit itself will require either his/her consent or a warrant. On the other hand, simply storing one's belongings in the apartment of a friend leaves the individual at the mercy of his friend's consent. In both of these situations, the "renter" is the one with ownership rights over the items, but his expectations of privacy nevertheless differ from scenario 1 to scenario 2, and reasonably so. With respect to e-mails, we can begin by asking: is our relationship with our e-mail providers more like the one we would have with storage rental companies or the one we have with our friends' basements? My intuition is that it is the former - while individuals may expect e-mail providers to give over a list of their subscribers and their corresponding IP addresses to the government (much like how a rental company would give over their list of customers), they would not expect the providers to hand over the actual contents of their e-mails without a warrant (much like the physical items they stored). The fact that there is no physical place we can point to should not doom this analysis - it is not too late for the courts to turn its claims that the Fourth Amendment protects people, not places, into more than rhetoric.

In a world in which personal best efforts to protect private information is insufficient because we have to interact with others who do not do the same, it is up to the courts to revive the Fourth Amendment to protect what are and should be reasonable expectations in the new technological world.

This is meaningless not-analysis. In response to my criticism of the last draft, you simply decided to ignore what I said and re-establish your argument on the same basis using different words. The Fourth Amendment, you say again, should be understood to reflect not "the artificial reason of the law," but whatever dumb shit uninformed people think about "privacy." That isn't how the constitutional law of search and seizure worked before, and it isn't how it's going to work now. The "reasonable expectation of privacy" bootstrap works against popular ideas of privacy, by giving judges the power to hold that the dumb shit people actually believe, by not being reasonable, isn't law. Which is what, in case after case, they do.

Here you tried again to make subjective popular belief the sole basis on which you are going to treat bits stored in a third-party location to which the operator has constant unlimited access differently than physical "papers and effects" stored on the same terms. This isn't legal analysis, this is ignoring applicable law. The question you need to answer is the question you ducked in this draft: what is the legal reason to treat bits differently than not-bits given the existing law of search and seizure with respect to third-party control?

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