Ever wonder how the law adapts to technology that makes it harder or easier for police to search and seize suspected criminals? Orin Kerr posits that an Equilibrium-adjustment exists. "Courts respond to the new facts by trying to restore the old level of protection. If a new technology or practice increased government power, courts ratchet up Fourth Amendment...
The Virtual Fourth Amendment
"I've just gotten around to reading Orin Kerr's fine paper 'Applying the Fourth Amendment to the Internet: A General Approach.' Like most everything he writes on the topic of technology and privacy, it is thoughtful and worth reading. Here, from the abstract, are the main conclusions:
'First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content 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.'
I'll let folks read the full arguments to these conclusions in Orin's own words, but I want to suggest a clarification and a tentative objection. The clarification is that, while I think the right level of particularity is, broadly speaking, the person rather than the account, search warrants should have to specify in advance either the accounts covered (a list of e-mail addresses) or the method of determining which accounts are covered ('such accounts as the ISP identifies as belonging to the target,' for instance). Since there's often substantial uncertainty about who is actually behind a particular online identity, the discretion of the investigator in making that link should be constrained to the maximum practicable extent."
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