A fascinating article getting a lot of notice on the Internet today (CNet News, PogoWasRight) is Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing by David A. Couillard, 93 Minn. L. Rev. 2205 (2009):

Internet use has changed over time, expanding beyond text-based forums and e-mails to include images, videos, documents, interactive online applications, online storage, and more. Experts have coined the term “Web 2.0” to describe the shift in Internet usage from consumption to participation and metaphorically refer to this virtual platform as “the cloud,” where users interact with Internet applications and store data on distant servers rather than on their own hard drives. Despite the shift in Internet usage, users expect their information to be treated the same on this virtual cloud as it would be if it were stored on their own computer, phone, or iPod.

Meanwhile, the Fourth Amendment has also evolved over the past several decades, slowly adapting to various new technologies; but it took the Supreme Court until 1967—nearly a full century after the invention of the telephone—to recognize telephone conversations as constitutionally protected against unreasonable searches. Under a rubric of “reasonable expectations of privacy,” the Court has since defined the contours of the Fourth Amendment’s application in varying circumstances. But technology and society’s expectations are evolving faster than the law. Although statutory schemes exist, some argue that these laws are outdated.10 Meanwhile, the Supreme Court has not even addressed the Fourth Amendment’s application to e-mail, let alone the expanding uses of cloudcomputing platforms. Thus, Fourth Amendment law needs a framework that will adapt more quickly in order to keep pace with evolving technology.

This Note will analyze cloud computing specifically in the context of the Fourth Amendment, notwithstanding related statutory provisions. Part I will examine the evolution of Fourth Amendment jurisprudence in the last several decades and describe the newly emerging field of cloud computing and the implications of that trend. Part II will describe how courts analogize Fourth Amendment precedent to these new and different cloud-computing concepts and will address whether society is reasonable to expect privacy in things stored on the Internet. In addition, it will look at judicial attempts to treat computer accounts and websites as virtual containers and how methods of virtual concealment have been treated under the law. Finally, Part II will also look at the role of third-party intermediaries in this complex privacy equation. So far, judicial approaches to these issues are unclear and vary by jurisdiction, or the issues have been avoided altogether. Part III will synthesize these concerns and lay out a framework for courts to follow when applying Fourth Amendment law to the cloud.

As computer file storage expands offsite, what are the expectations of privacy? Is a password enough? It should be. The Supreme Court has yet to rule on much of anything with computers or the Internet and the Fourth Amendment, still, in 2010.