Abstract:
This essay responds to Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005), http://ssrn.com/abstract=697541.
Professor Kerr has published a thorough and careful article on the application of the Fourth Amendment to searches of computers in private hands - a treatment that has previously escaped the attentions of legal academia. Such a treatment is perhaps so overdue that it has been overtaken by two phenomena: first, the emergence of an overriding concern within the United States about terrorism; and second, changes in the way people engage in and store their most private digital communications and artifacts.
The first phenomenon has foregrounded a challenge by the President to the very notion that certain kinds of searches and seizures may be proscribed or regulated by Congress or the judiciary. The second phenomenon, grounded in the mass public availability of always-on Internet broadband, is leading to the routine entrustment of most private data to the custody of third parties - something orthogonal to a doctrinal framework in which the custodian of matter searched, rather than the person who is the real target of interest of a search, is typically the only one capable of meaningfully asserting Fourth Amendment rights to prevent a search or the use of its fruits. Together, these phenomena make the application of the Fourth Amendment to the standard searches of home computers - searches that, to be sure, are still conducted regularly by national and local law enforcement - an interesting exercise that is yet overshadowed by greatly increased government hunger for private information of all sorts, both individual and aggregate, and by rapid developments in networked technology that will be used to satisfy that hunger. Perhaps most important, these factors transform Professor Kerr's view that a search occurs for Fourth Amendment purposes only when its results are exposed to human eyes: such a notion goes from unremarkably unobjectionable - police are permitted to mirror entirely a suspect's hard drive and then are constitutionally limited as they perform searches on the copy - to dangerous to any notion of limited government powers. Professor Kerr appreciates this as a troublesome result - indeed, downright creepy - but does not dwell upon it beyond suggesting that the copying of data might be viewed as a seizure if not a search, at least so long as it involves some physical touching or temporary commandeering of the machine. This view should be amplified: If remote vacuum cleaner approaches are used to record and store potentially all Internet and telephone communications for later searching, with no Fourth Amendment barrier to the initial information-gathering activity in the field, the government will be in a position to perform comprehensive secret surveillance of the public without any structurally enforceable barrier, because it will no longer have to demand information in individual cases from third parties or intrude upon the physical premises or possessions of a search target in order to gather information of interest. The acts of intruding upon a suspect's demesnes or compelling cooperation from a third party are natural triggers for judicial process or public objection. If the government has all necessary information for a search already in its possession, then we rely only upon its self-restraint in choosing the scope and depth of otherwise unmonitorable searching. This is precisely the self-restraint that the Fourth Amendment eschews for intrusive government searches by requiring outside monitoring by disinterested magistrates - or individually exigent circumstances in which such monitoring can be bypassed.
Taken together, the current areas of expansion of surveillance appear permanent rather than exigent, and sweeping rather than focused, causing the justifications behind special needs exceptions to swamp the baseline protections established for criminal investigations. This expansion stands to remove the structural safeguards designed to forestall the abuse of power by a government that knows our secrets.