Posted by Orin Kerr:
Applying the Fourth Amendment to the Internet: A General Approach:
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235671894
For several years, I have been pondering the very difficult question
of how the Fourth Amendment should apply to the Internet. In
particular, I've been trying to come up with a set of general
principles that should frame how to translate the Fourth Amendment to
the Internet. I have just posted a draft article on SSRN that attempts
to answer these questions:[1] Applying the Fourth Amendment to the
Internet: A General Approach.
Here's 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.
Comments are very welcome, either in the comment thread or via
e-mail. I haven't sent this out to law reviews yet, and so any final
publication is likely a year away, and there are still aspects of this
general framework that I'm not entirely sure of myself. (There are
also some claims about the technology that I believe are accurate, but
may not be; technical corrections are as welcome as legal points.)
Also, for readers who are interested in the broader perspective,
this article is the network sequel to an earlier work of mine on the
stand-alone computer environment, [2]Searches and Seizures in a
Digital World, 119 Harv. L. Rev. 531 (2005).
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1348322
2. http://www.harvardlawreview.org/issues/119/Dec05/Kerr.pdf
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