65 Pages Posted: 11 Mar 2018 Last revised: 2 Feb 2019
Date Written: January 31, 2019
Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs—all the websites they visit, people they communicate with, emails they send, files they store, and more—law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that are difficult to justify and that are both over- and underprotective of privacy.
This Article proposes a new approach to regulating government investigations of data that has been shared with ISPs—one that is inspired by a legal tool designed to achieve the very balance between public benefits and private burdens that has thus far proven elusive. This tool is the Takings Clause. Under the Takings Clause, the government can acquire private property, including intangible and intellectual property, but this wide-ranging power is disciplined by the requirement that the government pursue a public purpose and pay just compensation for the property it takes. This Article argues that adapting these features of the takings framework to govern the investigation of ISP-held data would be feasible, theoretically and doctrinally sound, and normatively desirable.
In making this argument, this Article addresses one of the primary problems with the various existing mechanisms by which government conducts investigations online, which is that the costs of diminished privacy fall on the civilian targets of those investigations. The result is that law enforcement does not adequately consider these costs when making investigation decisions. Acquiring information under a takings-inspired regime, by contrast, would trigger a requirement to compensate the person whose privacy has been diminished and thus impose a direct cost on the government entity conducting the investigation. This obligation to pay would force the investigating entity to be more thoughtful about which investigations are the highest priorities, most likely to yield valuable information, and most tailored to achieve their purposes.
Keywords: Property, Privacy, Intellectual Property, Eminent Domain, Electronic Data, Criminal Procedure, Policing, Law Enforcement
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