Applying the Fourth Amendment to the Internet: A General Approach
47 Pages Posted: 24 Feb 2009 Last revised: 27 Feb 2015
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: Suggested Citation
Do you have a job opening that you would like to promote on SSRN?
Recommended Papers
-
A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending it
By Orin S. Kerr
-
Searches and Seizures in a Digital World
By Orin S. Kerr
-
The Case for the Third-Party Doctrine
By Orin S. Kerr
-
Brandeis & Warren's 'The Right to Privacy and the Birth of the Right to Privacy'
By Ben Bratman
-
Buying You: The Government's Use of Fourth-Parties to Launder Data about 'The People'
-
Back to Katz: Reasonable Expectation of Privacy in the Facebook Age