New law review article: “The Fourth Amendment Right To Delete”

The Fourth Amendment Right To Delete by Paul Ohm in the Harvard Law Review. First paragraph and last paragraph of introduction:

For years the police have entered homes and offices, hauled away filing cabinets full of records, and searched them back at the police station for evidence. In Fourth Amendment terms, these actions are entry, seizure, and search, respectively, and usually require the police to obtain a warrant. Modern-day police can avoid some of these messy steps with the help of technology: They have tools that duplicate stored records and collect evidence of behavior, all from a distance and without the need for physical entry. These tools generate huge amounts of data that may be searched immediately or stored indefinitely for later analysis. Meanwhile, it is unclear whether the Fourth Amendment’s restrictions apply to these technologies: Are the acts of duplication and collection themselves seizure? Before the data are analyzed, has a search occurred?

. . .

The right to delete explains why imaging is seizure without requiring Hicks to be overruled or otherwise conflicting with existing jurisprudence. It will also help determine the Fourth Amendment status of the ongoing data collection of heat emanations, keypresses, monitor images, WiFi communications, GPS tracks, web browsing records, and new technologies yet to be invented. Ultimately, a physical-property based reading of Fourth Amendment seizure fails to properly translate the Amendment’s protections to intangible, digital property.