Applying the Fourth Amendment to the Internet: A General Approach

Orin Kerr

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This Article proposes a general approach to applying the Fourth Amendment to the Internet. It assumes that courts will try to apply the Fourth Amendment to the Internet so that the Fourth Amendment has the same basic function online that it has offline. The Article reaches two major conclusions. First, Fourth Amendment protections online should depend on whether the data is content or non-content information. The contents of communications, like e-mail and remotely stored files, ordinarily should be protected. On the other hand, non-content information, such as IP addresses and e-mail addresses, ordinarily should not be protected. Second, courts should ordinarily require a search warrant if the government seeks to obtain the contents of protected Internet communications. Further, the scope of warrants should be based on individual users rather than individual accounts. 

The Article begins by explaining how the Fourth Amendment applies to physical space. It makes two main points. First, in physical space the basic dividing line of Fourth Amendment protection is between inside spaces and outside spaces. Outside spaces are not regulated by the Fourth Amendment: the government can go anywhere outside without triggering Fourth Amendment protections. However, the Fourth Amendment does ordinarily protect inside spaces. The government ordinarily needs a warrant to enter an enclosed space unless there are special circumstances such as consent. Second, once the Fourth Amendment protects a space, its rules are based on a physical conception of how broad a search can be. In particular, the Fourth Amendment allows a search warrant for physical spaces using the basic size constraints of the physical world. For the most part, a search warrant uses the basic unit of a home to limit the scope of warrants.

Applying the Fourth Amendment to the Internet is challenging and interesting because these two principles no longer work. The Internet does not rely on a distinction between inside and outside, and there are no clear notions of space that would limit the scope of space over which a search can occur. The challenge of applying the Fourth Amendment to the Internet is finding new principles that serve the same function as the old principles in the new network space. New rules are needed. What should they be?

First, the distinction between inside and outside in the physical world should be replaced in the online setting by the distinction between content and non-content information. In the online setting, courts should treat non-content information relating to communications as if it were functionally “outside” and content information as if it were functionally “inside.” Internet surveillance of non-content information should not trigger the Fourth Amendment just like surveillance of public spaces does not trigger the Fourth Amendment, and surveillance of content should presumptively trigger the Fourth Amendment in the Internet setting just like surveillance of inside spaces presumptively triggers the Fourth Amendment in the physical world.

The core reason to use the content/non-content distinction is because it captures the basic function of the inside/outside distinction. Outside surveillance is usually surveillance relating to identity, location, and time. By watching a person in public, the police normally can learn where he was at a particular time and where he was going. In contrast, inside surveillance is much more likely to be surveillance relating to private thoughts. By breaking into a person’s private spaces, the police can obtain insights into the contents of the person’s mind that he normally keeps to himself or only shares with a trusted few. That distinction correlates reasonably accurately to the online distinction between content and non-content surveillance. Online, non-content surveillance is usually surveillance related to identity, location, and time; content surveillance is surveillance of private thoughts and speech.

The basic function of communications networks explains the correlation of the two principles. Communications networks are tools for delivering content that would otherwise have to be delivered in person. The network carries the communication to its destination so that the user does not need to travel there. The distinction between content and non-content information over the network reflects the distinction between the private inside places where communications are typically sent and received and the public outside places over which the communications must travel. The non-content information is the information generated by the network needed to deliver the communication: that information substitutes for what would have been observable in public if the user had delivered the communication in person. In contrast, the content information is the private message that the user seeks to deliver. It substitutes for the contents of the package or letter that would be delivered.

Importantly, this basic insight is only a first step towards applying the Fourth Amendment to the Internet. The line between content and non-content information can be difficult in some cases involving person-to-computer applications. Further, a presumption that contents of communications are protected by the Fourth Amendment is just a presumption: there will likely be many exceptions to this rule, just as there are exceptions to the presumption that inside surveillance is protected. However, it is beyond the scope of this Article to identify in exactly which circumstances content surveillance should be allowed. While this is only a first step, it is an important one. Recent court decisions have pointed somewhat hesitatingly in this direction, and this section shows why this direction is correct and why courts should follow this distinction in the future.

With the basic distinction between content and non-content communications in place, the next issue is how much protection the Fourth Amendment should extend to the content of communications. First, if the Fourth Amendment protects the content of communications, exactly what kind of protection does it offer? Does the Fourth Amendment require a warrant, or do Internet applications justify different treatment, like a probable cause requirement without a warrant? And second, if a warrant is required, how much authority should a warrant provide? Should a warrant allow a narrow search or a broad one? Should a warrant for Internet communications be limited to a single account hosted by a single provider, or should it allow for searches through multiple accounts, and if so, how many?

This part of the Article contends that the Fourth Amendment ordinarily requires a warrant for the collection of the content of Internet communications. The Internet should not trigger a lower standard such as are found with the automobile exception. Content stored in and transferred through Internet accounts should be protected with the same default warrant requirement that are required for access to homes, telephone calls, and postal letters. Further, the Fourth Amendment should require a narrow exception permitting for the warrantless copying of data pending a warrant. Such a power would mirror similar authorities to temporarily detain packages pending a warrant to open a package, and would allow for a warrant requirement for access to content of communications. Under my proposed framework, the federal privacy statute that permits the government to compel access to stored files without a warrant is unconstitutional in many of its applications.

Finally, the particularity requirement should allow searches of multiple accounts with multiple providers used by the same criminal suspect instead of requiring separate warrants with separate probable cause for every individual account. The multiplicity of services in the Internet setting should lead the particularity requirement to allow one warrant for multiple accounts, much like the statutory roving wiretap authority allows one warrant for multiple telephones in the traditional telephone setting. Put another way, the particularity requirement of Fourth Amendment law should be applied so the basic building block of particularity in the online environment is a specific Internet user, not a specific account or physical device.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Orin S. Kerr is a Professor of Law at The George Washington University Law School.

This Legal Workshop Editorial is based on the following Law Review Article: Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 STAN. L. REV. 1005 (2010).


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