Posted by Orin Kerr:
Applying the Fourth Amendment to the Internet, Part II -- Replacing the
Inside/Outside Distinction with the Content/Non Content Distinction
http://volokh.com/archives/archive_2009_03_29-2009_04_04.shtml#1238441460
(This is the second of a short series of posts on my new forthcoming
article, [1]Applying the Fourth Amendment to the Internet: A General
Approach, forthcoming in the Stanford Law Review. For the first post,
click [2]here.)
So imagine you're trying to apply the Fourth Amendment to the
Internet so that it plays the same role in Internet crime
investigations that the Fourth Amendment plays in traditional physical
investigations. How can you do that?
The first step is to realize that the Fourth Amendment in the
physical world is based on a fundamental distinction between inside
surveillance and outside surveillance. If something occurs outside,
the police are free to watch it: The Fourth Amendment doesn't regulate
them. On the other hand, if something occurs inside, the Fourth
Amendment presumptively applies: Barring special circumstances such as
consent, the Fourth Amendment regulates government access to that
inside space.
The line between inside and outside can get a little tricky, to be
sure. In fact, many of the most interesting cases consider exactly
where the line falls (think Kyllo or the open fields/curtilage cases).
But that distinction is essential to the Fourth Amendment in the
physical world. It creates a zone that the police can monitor, mostly
involving transactional information about where people are and what
they are doing, while carving out a private zone where the police
can't go without special circumstances, mostly involving the substance
our of private thoughts, writings, and expression.
Now turn to the Internet. Online, the distinction between "inside"
and "outside" no longer makes a lot of sense. Some new distinction is
needed to replace the function of the outside/inside distinction.
My article proposes that the online distinction between content and
non-content information should replace the physical distinction
between inside and outside surveillance. The contents of
communications, such as e-mail messages, subject lines, and remotely
stored files, should be presumptively protected by the Fourth
Amendment. Absent special circumstances such as consent or posting
documents on the Internet, the Fourth Amendment should regulate
government access to contents. On the other hand, non-content
information, such as IP addresses mail header information other than
the subject line, should not be protected.
I think this approach nicely translates the Fourth Amendment to the
Internet because content and non-content information are network
substitutes for inside and outside. To see this, you need to think
about how networks work and what functions they serve. Networks are
means for transporting information or property from one place to
another. Instead of transporting information or property yourself, you
sit back and the network does that work for you remotely. The
non-content information is the information in the network that is
generated and used to deliver the package: It records where the
package went, when, how big it was, and the like. In contrast, the
content information is the package itself: It is the actual
information that the person sent.
Replacing the inside/outside distinction with the
content/non-content distinction leads to a technology-neutral Fourth
Amendment because the latter is a network substitute for the former.
The non-content information -- that information generated to deliver
the package -- is the network substitute for what would have been open
to public observation and therefore "outside" in a physical
environment with no network. The content information is the network
substitute for what would have been hidden from public observation and
therefore "inside" in a physical environment.
Replacing inside/outside with content/non-content maintains the same
basic function of the legal distinction in light of the shift from
physical space to network space.
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1348322
2. http://volokh.com/posts/1237931533.shtml
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