The world has experienced an extraordinary internet growth since the last millennium. There has been a considerable measure put in place to adapt to this growth. The vacuum could be so unhealthy if the law did not catch up with the trend (Susan, 2005). The Americans in their bid to secure their fundamental rights and freedom in this new era of information technology adopted the fourth amendment to their Constitution.
Nonetheless, the internet age has made the amendment so porous and almost worthless. The advent of cybercrime has brought up the modern violation of the fourth amendment (Susan and Barbara, 2002). The interpretation given by the courts has not helped to mitigate the impact of cybercrime on the amendment. This paper seeks to define the jurisprudence behind the fourth amendment, to analyze the violation of the amendment and offer recommendations on how to improve the efficacy of the amendment in protecting and promoting citizens’ rights.
The fourth amendment presupposes that American citizens are protected from arbitrary searches, their information is not to be seized without their consent, and their right to privacy was paramount unless it was deprived of them in accordance with the law in a manner that is acceptable and justifiable in a democratic society (Orin, 2004). However, the internet can be used to infringe on one’s right to privacy in various ways such as wiretapping, hacking into a person’s computer devices or digital communication records, or publishing one’s health status on the internet. All these acts form part of cybercrime.
Various factors curtail the fourth amendment from attaining its effectiveness in protecting the right to privacy. First, the judiciary as the institution mandated to interpret the amendment largely contributes to its violation. The manner in which the courts interpret what amounts to reasonable search leaves lacunae in the application of the amendment in cybercrime cases.
The court tries its interpretation of unreasonable search on two factors that is whether a person whose privacy is being infringed had a legitimate expectation for privacy and if so, whether that expectation was reasonable according to the right thinking member of the society (Timothy, 2010). This interpretation is very dangerous in the protection of the right to privacy especially as regards cybercrime. Technology advances every day and what might be unreasonable today may not be so when a new technology is invented. The test also fails to appreciate the expectations of a society which change over time. The doctrine of stare decisis complicates the matter even further where a new online invention is used to infringe on a person’s privacy.
Secondly, the courts have held that any person who exposes his private information to third parties does not enjoy the protection offered by the fourth amendment. It is presumed that such information is no longer private as mentioned in the amendment United States v. Jacobsen, 466 U.S. 109, 113 (1984), . However, in this era of technological advancement, the position seems to be outdated. The digital world has left people revealing a great deal of information about them in the course of carrying out daily business. People have to disclose phone numbers when they dial their service providers. Someone has to give out email address and passwords to open certain online accounts. Orin (2004) argue that this information can be used by system administrator without their owner's consent and must, therefore, be protected by the fourth amendment. If a person searches, seizes, and uses this information through cybercrime, there must be a way for the victim to have recourse against such a criminal.
Unfortunately, the courts have held that a private individual whom without consent search or seize another person’s private information is not culpable on constitutional grounds for violating another person’s right to privacy. In the case of United States v. Jacobsen, 466 U.S. 109, 113 (1984), the court held that the amendment is wholly inapplicable in such a case so long as the person is not acting as an agent of the government or with the knowledge of government official. The rule applies even if the person furnishes this information to the police for prosecution purposes. This, therefore, means that people who take part in cybercrime and infringe on other people’s right to privacy cannot be found culpable on constitutional grounds.
Regarding wiretapping as a modern way of infringing on someone’s privacy, it is considered a challenge to determine the ability of someone to search and seize information. The court in the case of the United States v. Knotts, 460 U.S. 276, 281–82 (1983) questioned whether information such as that from a phone conversation could be searched and seized. In this case, the government had wiretapped a communication and converted the signal being transmitted into sounds that were later amplified to replicate a conversation. The court held and wrongly, so that there was no search conducted there; instead the information was collected by sense of hearing only (Susan and Barbara, 2002). The court did not consider the fact that the wires belonged to the party in communication and using wire to tap the information amounted to search for information. Although this precedence has been overturned, it does not stop another judge to use the same reasoning to reach a similar conclusion in the future.
The formulation above denotes the fourth amendment more than it promotes and protects it. How the amendment applies to a private individual searching and seizing private information encourages further interference with privacy of persons. They can do that as much as they wish without being held responsible for a constitutional violation.
The Fourth Amendment was adopted to secure the liberties of America citizens further. Information technology should not be an impediment to the enjoyment of the amendment’s benefits. Instead, it should aid in its protection and promotion. The court should interpret the amendment in a purposive manner to ensure that its letter and spirit coincide. This is the only way that the U.S.A will protect individual privacy while at the same time legally fight and reduce the rate of cybercrime in the country.
Apply the fourth amendment to private individuals
The fourth amendment needs to be applied to a private individual also who violate other people's right to privacy. The people can only fully enjoy this right if all avenues of violation are sealed. There is no need to protect one's right against a government official and not against a cyber-criminal.
Develop a coherent jurisprudence regarding the amendment and cybercrime
The courts need to develop a coherent position about the relationship of the fourth amendment and cybercrime. Finally, exposure of private information to a third party should not be considered as a waiver of the fourth amendment protection. Technology has outdated this position it is high time legislative measures were adopted to amend this position.
Susan W. & Barbara S. (2002). Computer Searches and Seizures: Some Unresolved
Issues, Michigan Telecommunication and Technology Law Review. 39(8), 106-13.
Susan, W. (2005). The Fourth Amendment in an Era of Ubiquitous Technology, Mississippi Law
Timothy, C. (2010). Orwellian Ramifications: The Contraband Exception to the Fourth
Amendment, Memorial University Law Review. 299(41), 346-47.
Orin, S. (2004). The Fourth Amendment and New Technologies: Constitutional Myths and the
United States v. Jacobsen, 466 U.S. 109, 113 (1984)