When the founders of United States of America ratified the Bill of Rights in 1791, they could not have imagined the technology we use and rely on today. The 4th Amendment of the U.S. Constitution was intended to provide the American public with protections from unwarranted government intrusion into their most private property. While the language used in writing the 4th Amendment has been broad enough to function fairly well for more than two centuries, the rise of personal computers and internet technology has created a wave of questions and court cases about what data and communications receive 4th Amendment protection. This paper follows changes in 4th Amendment jurinternet service providerrudence during the latter half of the 20th century, and how the extremely rapid advancement of modern technologies has proven a difficult problem for the federal courts.
Any discussion of these issues must begin with examining the 4th Amendment itself. The full text of the Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (U.S. Const. amend. IV).
This single sentence provides substantial details relating to the circumstances in which the government must obtain a warrant to search or seize any person, and how those warrants may be obtained. Of course, an incredible number of cases and questions regarding various ramifications of the 4th Amendment have been decided over the years, and not all of them are relevant to the discussion of computer and internet issues.
The main issues that have defined cases about the 4th Amendment and modern technology have been based on: what is included in the terms “persons, houses, papers, and effects,” and when the warrant requirement included in the 4th Amendment applies to searches of these various types of data.
Questions about the terms “persons, houses, papers, and effects” and their application to new technologies did not start with the computer age, but with an older technology: the telephone. Like computers, telephones were not something in mind when the Constitution was drafted. A number of significant cases were decided in regards to telephone wiretapping, and despite the changes in technology, these are the most salient cases when it comes to looking at these issues in relation to computer and internet technologies.
The earliest major case that dealt with wiretaps and the 4th Amendment was Olmstead v. United States (1927). While investigating a massive bootlegging operation, federal officers tapped the lines leading out of Olmstead’s place of operations without applying for or obtaining any warrant. They spent months listening to calls going in and out of the building, garnering enough incriminating information to convict Olmstead on charges related to violating prohibition laws. Olmstead’s appeals ended up before the Supreme Court, on the argument that the information gleaned from the wiretaps was obtained in violation of the 4th and 5th Amendments. The Supreme Court disagreed. The majority concluded that because the federal officers had not physically intruded onto any part of Olmstead’s property—instead setting up the wiretaps at outside locations—the 4th Amendment did not apply, and the officers did not make any violation by failing to obtain a warrant, and so upheld Olmstead’s conviction. (Olmstead v. U.S., 1927)
This case caused a flurry of legislation and contradictory court decisions over the next few decades. These decisions and discussions reflected their authors’ disagreement with the Supreme Court’s decision. To them, the Court’s decision was overly-technical in regards to the language of the 4th Amendment. While there had been no physical trespass onto Olmstead’s property, surely that was not the intent of the drafters of the Constitution. After all, when they had written the 4th Amendment, being able to eavesdrop on someone within their own personal property basically required being in extremely close physical proximity. The idea that government officers could be a block away and still hear every single communication would not have been a conceivable situation.
That was a significant part of the reasoning behind the case that would overturn the rule established in Olmstead (1927). Forty years after the Olmstead decision, the Supreme Court directly invalidated its ruling in the case of Katz v. United States (1967). In Katz, FBI agents had attached recording devices to the outside of a public telephone booth which Katz was using to conduct illegal wagering operations in violation of federal law. The information they obtained was used to convict Katz at trial, and Katz appealed based on a 4th Amendment argument. The Court of Appeals affirmed his conviction, stating that because there was "no physical entrance into the area occupied by" Katz, there was no 4th Amendment violation—basically the rule established in Olmstead. But when Katz appealed to the United States Supreme Court, a very different decision was made instead. Katz directly overturned the “trespass requirement” established in Olmstead; the Court reasoned that the 4th Amendment protects people, not places, and so requiring physical trespass was not an accurate application of 4th Amendment protections. (Katz v. United States, 1967)
Most importantly, the Katz decision confirmed two other aspects of 4th Amendment protection that have been at the forefront of later cases surrounding computer and internet issues. First, Katz had “justifiably relied” on his expectation of privacy when using the public payphone. The idea that Katz could not reasonably have expected any form of privacy when in such a public space, and one which was out of his control, was part of the government’s argument in the case, and one that the Court rejected. Second, the Court confirmed that the 4th Amendment applied not only to physical property, but also to recordings of oral statements and conversations. (Katz v. United States, 1967) While the Court likely could not foresee the kinds of digital communications that would become a part of daily life within a few short decade, the inclusion of non-physical “property” within the protections of the 4th Amendment has proven to be very important in cases surrounding computer data and online communications.
After Katz, Congress enacted a series of wiretapping statutes clarifying the warrant requirements applicable to various law enforcement agencies. Among other rules, these statutes established that require warrants for the wiretapping of conversations that neither involved party had consented to (1968 Wiretap Statute), that real-time intercepts—regardless of the involved technology—constitute wiretapping (EPCA 1986), and that “pen register” search requirements apply to email headers and website history information (US PATRIOT Act 2001).
All of these clarifications have been important coming into the modern technological age because of the nature of computer data and internet communications. Under the Olmstead decision, only actual physical trespass by government agents into the defendant’s private property could constitute a violation of the 4th Amendment (Olmstead v. United States, 1927). This would clearly be entirely inapplicable to virtually all digital communications or data of any kind as we use it today. Digital files and communications do not exist in any tangible form whatsoever. Prior to the widespread use of cloud computing and remote internet storage, files were generally stored on a local hard drive. The requirements for seizing those items in compliance with the 4th Amendment were fairly easy to determine; it required the physical seizure of a tangible personal effect.
However, when it comes the seizure of a data file itself—rather than the hardware the file is stored on—the questions have been far more difficult to answer. When it comes to email communications, the arguments about 4th Amendment protections have turned largely on two issues: one is the storing of email messages on third-party servers, and the other has to do with “packet switching” technology.
“Third-party doctrine” is an area of 4th Amendment law which creates an exception to the warrant requirement. Basically, if a defendant—or person who will become a defendant—communicates information to a third party, that defendants no longer retains any legitimate privacy interest in that information, and the government can obtain the information from that third party without a warrant without violating the 4th Amendment rights of the defendant. For example, in the 1976 case of Miller v. California, the prosecution obtained checks that incriminated the defendant from the bank where he had the checks issued and deposited. The court there concluded that because he had handed the checks over to the bank, he did not retain a privacy expectation in those checks.
When it comes to internet-based information and the 4th Amendment requirements, this has been a sticking point. Because of the way computer networks operate—whether local or over the internet—prosecutors in some cases have argued that defendants have no expectation of privacy under the third-party doctrine. To put it simply, a network of computers shares information by placing that information on a central server. It is not necessary for any of the computers to individually store the information, but all can access the data contained on the shared server. In a local network, the number of computer accessing the data is limited. But in internet networks, there is no inherent limit to the number of computers able to access the information, only those put in place by those who create and manage the network.
This was at issue in the 2010 case of United States v. Warshak. The 4th Amendment issue in the case was based on the government’s use of Warshak’s personal emails as evidence at trial. The government had relied on third-party doctrine in obtaining the emails from Warshak’s internet service provider. Rather than obtaining the emails by way of a warrant, the government used only a subpoena to gather the emails from the internet service provider, which the internet service provider was required to store subject to other federal laws. Because the internet service provider was technically a third party, the government argued, the defendant had relinquished any legitimate expectation of privacy—and thus, 4th Amendment protections—in the emails. (United States v. Warshak, 2010)
The 6th Circuit Court of Appeals rejected this argument, though they did not overturn Warshak’s conviction based on the “good faith” exception. However, the individual outcome for the defendant is irrelevant to the important holding in this case. The Court of Appeals applied a two-prong analysis to the case. First, it asked whether Warshak had demonstrated a subjective expectation of privacy in the emails. In other words, did he actually believe that they were private or confidential communications? The court decided that he had. After all, he likely would not have communicated anything incriminating had he known that the emails would be freely available to law enforcement. Then, the court asked whether society would agree that such an expectation was reasonable on Warshak’s part. Again, the court found that it would, and distinguished the case from the decision in Miller v. California (1976). In Miller, the defendant voluntarily handed over the evidence to the bank, being entirely aware of the bank’s procedure in reading, handling, and processing the checks. In Warshak, the court analogized the internet service provider to the U.S. Post Office or the phone company; the internet service provider was merely facilitating the communication, not receiving it. Law enforcement must obtain a warrant to get information from those services and cannot rely on a mere subpoena, and so a warrant should have been obtained for the information received from Warshak’s internet service provider. (United States v. Warshak, 2010)
The Warshak decision seems to be consistent with the purpose and intention of the 4th Amendment, and also with the analysis of the third-party doctrine exception. To a large degree, this comes back to the idea that the drafters of the Constitution could not have imagined this particular type of technology. It seems reasonable to conclude that the 4th Amendment’s inclusion of “papers” should extend to email messages as well. Had Warshak communicated his messages via pen and paper sent through the mail, there would be no question about the need for a warrant under the 4th Amendment. To come to an entirely opposite conclusion based on nothing more than the system of delivery would be to undermine the entire purpose of the 4th Amendment altogether.
Other arguments regarding an interest in internet service provider -related information have been less successful. In the case of In re Property of Perry Forgione et al. (2006), the petitioners attempted to claim a privacy interest in the IP address that had been issued to them by the internet service provider that they had their internet service subscription through. In that case, a college student had made several complaints to his university’s technical support department about his email and computer being hacked. He stated that his only guess about who the culprit might be was that it was his ex-girlfriend, though he was not sure and did not identify her by name. Through the course of investigating the hacking, the campus employee eventually identified an IP address that was accessing the student’s computer. He contacted the internet service provider connected with the IP address and received the physical address of the subscriber who had been issued that IP address, which happened to be the home of the student’s ex-girlfriend and her family. Law enforcement seized several computers from the home for the purposes of pursuing the hacking-related charges. When the family motioned to reclaim the computers, they based part of their argument on a privacy interest in their IP address, basically claiming that their rights were violated when the internet service provider gave the IP address to law enforcement without a warrant.
The Connecticut Superior Court rejected that argument. The court found a few reasons that the family had no privacy interest in the IP address, nor the subscriber information attached to it. First and foremost, the IP address was created and assigned by the internet service provider based on a contractual agreement the family entered into for the purpose of purchasing internet access at home. It seems obvious that third-party doctrine would apply because the IP address was created only through the actions of a third party (the internet service provider). Second, the court saw the link between the IP address and physical address for the subscriber as nothing more than the sort of connection seen in a phone book. It simply did not provide any protected information, only that which was readily available and had been voluntarily given by the family by way of entering into the internet service subscription.
This decision, while appearing to go the opposite direction from the later Warshak case, also seems to be in line with the meaning of the 4th Amendment. The 4th Amendment was never intended to extend to property or communications that a defendant never had any legitimate expectation of privacy in the first place. That was exactly what the Forgione family was attempting to do in their argument about the IP address information. That information had never been private and was not even created or held by them; the IP address had been created and conferred upon them by the internet service provider. It would seem absurd to grant them privacy rights and 4th Amendment protections in information that was never theirs to begin with, even if it had legal consequences for them later on.
Recent cases have converged in an area that brings into question the line drawn between physical possession of a computer and the data stored within. These are cases relating to the ability of law enforcement to search through the contents of smartphones without a warrant once the smartphone’s owner has been taken into custody.
It is important to note an exception to the 4th Amendment warrant requirement in the discussion of these cases, known as the “search incident to lawful arrest” exception. When a person is arrested and placed in jail, their possessions are confiscated and kept in police custody as long as the person is detained. Several decisions of the Supreme Court over many years have created the ability for police to search these items once they have been taken from the detained individual. The primary reasons for this are safety and preservation of evidence. Law enforcement officers have a need to ensure that they are not storing anything that could be dangerous, and that they will not be handing important evidence back to the inmate upon release, allowing for the defendant to dispose of it.
A number of recent court decisions have split on this issue when it comes to smartphones. Smartphones are really tiny computers, usually containing email accounts, text messages, social media accounts, and other large amounts of personal data. However, unlike computers, smartphones are likely to be constantly carried by their owners, and often do not have the same security barriers a personal computer would. The issue arising in these cases is whether police are allowed to search through these phones under this 4th Amendment exception.
A 2011 California Case, People v. Diaz, found that law enforcement could do exactly that. Diaz was arrested and charged with selling the drug ecstasy. Without a warrant, police looked through his text messages and found incriminating messages showing that he had indeed been setting up ecstasy sales. At the California State Supreme Court, the judge held that this was an inventory search just like any other, citing a U.S. Supreme Court case about an unwarranted search of a cigarette packet that contained heroin. (United States v. Robinson, 1973)
In contrast, the Ohio State Court of Appeals found that without legitimate concerns for safety or destruction of evidence, a warrant is necessary to search cell phone data, whether a smartphone or simpler mobile phone. (State of Ohio v. Smith, 2009)
While the United States Supreme Court has not made any overarching decision on this issue yet, it seems that the Ohio court’s decision is more in line with the 4th Amendment. The exceptions to the 4th Amendment exist for a reason, but they should be narrowly applied; otherwise, they would simply eclipse the 4th Amendment and render it useless. Allowing police to search the possessions of those they detain seems reasonable enough when talking about weapons or the actual evidence the arrest was based on. But accessing all sorts of information and communications that were otherwise unknown entirely crosses the line. Besides, as long as the person is detained, there is no risk of those messages being destroyed, and that alone gives ample opportunity to obtain a valid search warrant.
These issues really come down to taking a document that was written in a time where our modern technology may well have been taken as impossible dreams, and applying it to a world it was never intended for. Despite the difficulties in making these changes, the rights granted to the American people in the 4th Amendment are just as valid now as they day they were written. It would be best to keep that in mind and find a way to continue the spirit, if not the letter, of those ideas.
In re Property of Perry Forgione et al. 908 A.2d 593 (2006)
Katz v. United States - 389 U.S. 347 (1967)
Olmstead v. United States, 277 U.S. 438 (1928)
People v. Diaz 51 Cal. 4th 84, 244 P.3d 501, 119 Cal. Rptr. 3d 105 (2011)
United States v. Miller - 425 U.S. 435 (1976)
United States v. Robinson, 414 U.S. 218 (1973)
United States v. Warshak, 631 F.3d 266 (6th Cir. 2010)