The fourth amendment guarantees our right to be free from “unreasonable searches and seizures” in our “houses, papers, and effects.” Basically, if we have a general right of privacy in a particular space, we are entitled to protection under the fourth amendment. So the police can’t just barge in on me dancing in the comfort of my home without a warrant. Thank goodness for that.
Fortunately, the fourth amendment has been around for a while, so courts have been able to iron out a lot of the nitty gritty. In Katz v U.S. (1967), the court defined a search as having occurred if someone has an expectation of privacy regarding the thing being searched and if it is found that that expectation of privacy is reasonable. Now what in the world does reasonable mean? In Katz, federal agents recorded a conversation of Charles Katz making illegal gambling wagers from a telephone booth. The court ruled that Katz had a reasonable expectation of privacy in the telephone booth since he closed the door of the telephone booth. By closing the door, Katz made clear his expectation of privacy; thus even when the recording devices the federal agents used were attached to the outside of the booth, the agents infringed upon Katz’s fourth amendment rights.
Reasonable Expectation of Privacy in the Digital World
Of course, the definition for what is considered a “reasonable expectation of privacy” is changing and depends largely on the circumstances. In Katz, Katz’s expectation of privacy in the telephone booth was reasonable given the physical boundaries Katz set by closing the door. But in the digital world, it is much more difficult to close the door.
Fortunately, we have a reasonable expectation of privacy on our computers, cell phones, and other digital devices. For example, as described in this recently published article on Arstechnica.com, police seizure of text messages on a cell phone was unconstitutional since the police infringed upon the cell phone owner’s expectation of privacy by conducting a warrantless search. As the court in State v. Smith (2009) ruled, we are actually entitled to a higher expectation of privacy with cell phones than closed containers or address books due to cell phones’ “ability to store large amounts of private data.” Courts are thus attempting to measure reasonable expectation of privacy on digital devices by comparing them to their physical analogs.
But as we begin to be able to store more and more information in tinier spaces, even searches of limited parts of a particular device have higher probabilities of invading our privacy. Content that might not have been included in a search is, in essence, easier to, unintentionally, ‘discover.’
Luckily, courts have already touched upon this issue. In U.S. v. Walsher (2001), the court found that “[b]ecause computes can hold so much information touching on many different areas of a person’s life, there is greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” So since computers and cell phones, as well as other devices, are able to hold so much information it is more difficult to search them without invading privacy, even with warrants.
But courts have yet to strike a balance between reasonable expectation of privacy in digital devices and the rights to search and seizure granted to law enforcement through warrants.
Third Party Doctrine
Okay, so we have a reasonable expectation of privacy with physical devices. Woohoo!
The same must apply to whatever we have online, like our emails, facebook conversations, etc. right?
Wrong.
According to the third party doctrine, also known as the Stored Communications Act we lose our expectation of privacy as soon as we share something with a third party. This includes Gmail, Facebook, Yahoo, and other online service provides. These companies, by law, can turn over your information to the government. Granted, the government can’t go on a fishing expedition in your email account without due reason but can ask to have access to something more specific, like a particular email.
And the same applies to facebook.
By exchanging information over the internet, you are essentially making the choice that you have lost your ‘reasonable expectation of privacy,’ as far as the government is concerned. (So private companies cannot get your information from internet service providers the same way that the government can)
So basically, the internet is essentially a public forum with regards to your fourth amendment rights.
The Future of the 4th Amendment
So as we grow more dependent on technology to store our personal information, the definition for a person’s reasonable expectation for privacy is more and more up in the air. The law hasn’t fully adapted to technological trends, but when it does, will we see the emergence of a 4th amendment for the digital age?
Yale Law Tech 