Abstract

http://ssrn.com/abstract=2428042
 


 



The Fourth Amendment and the Global Internet


Orin S. Kerr


George Washington University - Law School

April 23, 2014

Stanford Law Review, Vol. 67, 2015, Forthcoming
GWU Law School Public Law Research Paper No. 2014-30
GWU Legal Studies Research Paper No. 2014-30

Abstract:     
This article considers how Fourth Amendment law should adapt to the increasingly worldwide nature of Internet surveillance. It focuses on two types of problems not yet addressed by courts. First, the Supreme Court’s decision in United States v. Verdugo-Urquidez prompts several puzzles about how the Fourth Amendment treats monitoring on a global network where many lack Fourth Amendment rights. For example, can online contacts help create those rights? What if the government mistakenly believes that a target lacks Fourth Amendment rights? How does the law apply to monitoring of communications between those who have and those who lack Fourth Amendment rights? The second category of problems follows from different standards of reasonableness that apply outside the United States and at the international border. Does the border search exception apply to purely electronic transmission? And if reasonableness varies by location, is the relevant location the search, the seizure, or the physical person?

The article explores and answers each of these questions through the lens of equilibrium-adjustment. Today’s Fourth Amendment doctrine is heavily territorial. The article aims to adapt existing principles for the transition from a domestic physical environment to a global networked world in ways that maintain the preexisting balance of Fourth Amendment protection. On the first question, it rejects online contacts as a basis for Fourth Amendment protection; allows monitoring when the government wrongly but reasonably believes that a target lacks Fourth Amendment rights; and limits monitoring between those who have and those who lack Fourth Amendment rights. On the second question, it contends that the border search exception should not apply to electronic transmission and that reasonableness should follow the location of data seizure. The Internet requires search and seizure law to account for the new facts of international investigations. The solutions offered in this article offer a set of Fourth Amendment rules tailored to the reality of global computer networks.

Number of Pages in PDF File: 50

Keywords: Fourth Amendment, Internet, surveillance, Snowden

JEL Classification: K1, K42

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Date posted: April 24, 2014 ; Last revised: June 27, 2014

Suggested Citation

Kerr, Orin S., The Fourth Amendment and the Global Internet (April 23, 2014). Stanford Law Review, Vol. 67, 2015, Forthcoming; GWU Law School Public Law Research Paper No. 2014-30; GWU Legal Studies Research Paper No. 2014-30. Available at SSRN: http://ssrn.com/abstract=2428042

Contact Information

Orin S. Kerr (Contact Author)
George Washington University - Law School ( email )
2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4775 (Phone)
202-994-9817 (Fax)
HOME PAGE: http://www.law.gwu.edu/faculty/profile.asp?ID=3568
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