Are Google Searches Private? An Originalist Interpretation of the Fourth Amendment in Online Communication Cases

Abstract

This Note analyzes privacy protections currently in place for internet searches and the interplay between these protections and law enforcement access. Part I provides an overview of the technological and regulatory background for search engines and internet service providers (ISPs). Part II describes the constitutional and statutory framework for internet service provider and search engine data, including the protections currently in place for electronic data under the Electronic Communication Privacy Act (ECPA). In addition, it shines light on the erosion of Fourth Amendment protection of information held by third parties such as Google. Part III examines the Gonzales v. Google opinion as an example of the complex interplay among individual, business, and government interests in online communications. Part IV proposes that courts adopt an originalist interpretation of the Fourth Amendment in deciding online communication cases. This interpretation would be consistent with finding a reasonable expectation of privacy in certain information conveyed to third parties such as Google. Finally, Part V explores ECPA's statutory framework for electronic communications and advocates for expanding its protections.

Keywords: Internet Privacy, Google, Online Privacy, ECPA, Fourth Amendment, Google, Online Communication