Applying the Fourth Amendment to the Internet: A General Approach

47 Pages Posted: 24 Feb 2009 Last revised: 27 Feb 2015

Orin S. Kerr

The George Washington University Law School

Date Written: February 23, 2009

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 noncontent 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.

Keywords: Fourth Amendment, Internet, cyberspace

JEL Classification: K00, k14

Suggested Citation

Kerr, Orin S., Applying the Fourth Amendment to the Internet: A General Approach (February 23, 2009). 62 Stanford Law Review 1005 (2010). . Available at SSRN: https://ssrn.com/abstract=1348322

Orin S. Kerr (Contact Author)

The George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4775 (Phone)
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HOME PAGE: http://www.law.gwu.edu/orin-s-kerr

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