Fourth Amendment Seizures of Computer Data

25 Pages Posted: 13 Apr 2009 Last revised: 17 Mar 2018

See all articles by Orin S. Kerr

Orin S. Kerr

University of California, Berkeley School of Law

Date Written: 2010

Abstract

What does it mean to "seize" computer data for Fourth Amendment purposes? Does copying data amount to a seizure, and if so, when? This essay argues that copying data “seizes” it under the Fourth Amendment when copying occurs without human observation and interrupts the stream of its possession or transmission. It offers this position by reaching back to the general purposes of regulating seizures in Fourth Amendment law and then applying that function to the new environment of computers. The test prevents the government from copying data without regulation and yet also meets and answers the objections that have puzzled scholars and made it difficult to apply the old definition of seizures in the new computer environment.

Keywords: computer data, fourth amendment, seizures

JEL Classification: K20, K10

Suggested Citation

Kerr, Orin S., Fourth Amendment Seizures of Computer Data (2010). 119 Yale Law Journal 700 (2010). Available at SSRN: https://ssrn.com/abstract=1378402

Orin S. Kerr (Contact Author)

University of California, Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States

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