Fourth amendment doctrine developed in tangible contexts -- do you have an expectation of privacy inside your house? with respect to stuff you zip in a dufflebag? And in the last century, it has had to deal with more technology -- wiretaps, heat sensors, and so on. \
A new law review article explores privacy interests in material in "cloud computing" -- your diary stored in Google docs, your snapshots stored on Flickr, etc. David A. Couillard, Note, Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing, 93 Minn. L. Rev. 2205 (2009).
Tuesday, January 19, 2010
Fourth Amendment and Cloud Computing
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Olmstead v. United States, 277 U.S. 438 (1928)
"There is no body of precedents by which we are bound, and which confines us to logical deduction from established rules. Therefore we must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and, to that end, that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crime, when they are the means by which the evidence is to be obtained. If it pays its officers for having got evidence by crime I do not see why it may not as well pay them for getting it in the same way, and I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that, in future it will pay for the fruits. We have to choose, and, for my part, I think it a less evil that some criminals should escape than that the Government should play an ignoble part."
and...
""We must never forget," said Mr. Chief Justice Marshall in 17 U. S. 407, "that it is a constitution we are expounding." Since then, this Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the Fathers could not have dreamed. See Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 96 U. S. 9; Northern Pacific Ry. Co. v. North Dakota, 250 U. S. 135; Dakota Central Telephone Co. v. South Dakota, 250 U. S. 163; Brooks v. United States, 267 U. S. 432. We have likewise held that general limitations on the powers of Government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modern conditions by regulations which, "a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive." Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 272 U. S. 387; Buck v. Bell, 274 U. S. 200. Clauses guaranteeing to the individual protection against specific abuses of power must have a similar capacity of adaptation to a changing world. It was with reference to such a clause that this Court said, in Weems v. United States,@ 217 U. S. 349, 217 U. S. 373:
"Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule, a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality.""
Our Fourth Amendment Rights are to be sacred. The Courts should heed the warnings written in Olmstead.
Right to privacy is a constitutional mandate. Its impairment has its equivalent punishment.
I'm either naive or callous, but I don't understand how anyone can have a reasonable right to believe that the information they share or transmit via the Internet is private, let alone safe from prying eyes. Especially when it takes so little to pry. I would never save something on a third party's servers and believe that it was safe, or that the government wasn't scanning it, either legally or illegally.
If you're a lawyer, I wonder if saving something on Google Docs is even ethical.
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