This week, Scholarship Saturday is pleased to present the work of 3rd-year UMass Law School student Alexandria Murphy. Her piece, starting after the break, introduces an article written by UC Berkley law professor Orin Kerr concerning the constitutionality of the internet content preservation statute that is so often used by military law enforcement agencies, especially when investigating online crimes.
- Isaac Kennen, Scholarship Editor
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV.
It is well known that society advances much quicker than its legal system. However, what happens when that legal system’s sloth-like speed begins to impede on constitutionally protected areas? University of California Berkley Law Professor, Orin S. Kerr, explores this topic in his article entiled, "The Fourth Amendment Limits of Internet Content Preservation," which is soon to be published in the St Louis University Law Journal. Professor Kerr explores Fourth Amendment concerns implicated by the government’s ability to force private internet providers to preserve customer data under a 25-year old provision of the Stored Communications Act, 18 U.S.C. § 2703(f). Professor Kerr argues that data preservation is a seizure subject to the Fourth Amendment’s requirement of reasonableness. Specifically, when the preservation order is executed, data is removed from the user’s control, thereby creating “interference with the account holder’s possessory interest, transferring control of personal communications to the government.” The article asserts that executing such preservation orders fail that reasonableness standard because there is no requirement for government actors to any judicial officer sufficient evidence to establish probable cause, or even enough evidence to satisfy the reasonable suspicion standard.
The applicability of Fourth Amendment standards are often clearest in the 4-D world, where Americans are well-familiar with the concept that law enforcement must have evidence prior to seizing a person or their property (or, at the least, reasonable suspicion which later evolves into probable cause). But the issue becomes murky when the seizure moves to the world wide web. Under 18 U.S.C. § 2703(f), the government can, with any showing of cause, have every part of a person's online data frozen and preserved, without notice, for a period of 90 days while authorities prepare a case and investigate. While the government cannot search the information it has seized via a preservation request without first obtaining a warrant, the Fourth Amendment question remains: was the seizure itself reasonable? It seems obvious that such a warrantless seizure practice would not sit happily with the American people if it were applied outside of the digital dimension. Indeed, perhaps anticipating the displeasure it would cause to customers, few internet service providers report the number of preservation requests they have received from the government, and even fewer (if any) notify their users if that action is taken on their account. That silence is telling - it seems unlikely that behavior so eagerly concealed would be accepted as "reasonable" by the American people.
It also seems an unavoidable conclusion that, when the government requests preservation and the provider complies, that provider acts as the government’s agent and becomes a state actor. Even if the government has an Internet provider preserve an account and does not end up using that information, there is still a seizure by a state actor that contravenes the purpose of the Fourth Amendment. Without a standard to follow, above and beyond a “save it until we have probable cause for a warrant” standard, it becomes impossible for users to contest the propriety of the government's action. This latter point – that the seizure in question is executed without any right for the property’s owner, the user, to be heard – only amplifies the concerning nature of the internet content preservation regime. Not only does utilization of such power by federal authorities implicate Fourth Amendment concerns, it also equally implicates the due process clause of the Fifth Amendment.
3L and Public Interest Law Fellow at the University of Massachusetts School of Law
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