New Law Review: The Fourth Amendment Limits of Internet Content Preservation

Orin Kerr, The Fourth Amendment Limits of Internet Content Preservation, forthcoming in the St. Louis University Law Journal. Abstract:

Every year, hundreds of thousands of Internet accounts are copied and set aside by Internet providers on behalf of federal and state law enforcement. This process, known as preservation, is permitted without particularized suspicion. Any government agent can request preservation of any account at any time. Federal law requires the provider to set aside a copy of the account just in case the government later develops probable cause and returns with a warrant needed to compel the account’s disclosure. The preservation process is largely secret. With rare exceptions, the account owner will never know the preservation occurred.

This Article argues that the Fourth Amendment imposes significant limits on the preservation of Internet account contents. Preservation triggers a Fourth Amendment seizure because the provider, acting as the government’s agent, takes away the account holder’s control of the account. To be constitutionally reasonable, the initial act of preservation must ordinarily be justified by probable cause – and at the very least, in uncommon cases, by reasonable suspicion. The government can continue to use the Internet preservation statute in a limited way, such as to freeze an account while investigators draft a proper warrant application. But the current practice, in which investigators can order the preservation of accounts with no particularized suspicion, violates the Fourth Amendment.