Harvard Law Review: Tech Companies’ Terms of Service Agreements Could Bring New Vitality to the Fourth Amendment by Brent Skorup [that is, if they choose to do anything about it]:
Innovation in digital technologies dramatically reduces the cost and inconvenience of record creation and collection and stokes law enforcement officials’ insatiable appetite for information about citizens. In recent years, for instance, U.S. regulators and Congress have required private companies to report directly to the government every stock trade, airline passengers’ travel and biographical information, and details about small payments between individuals. Regulators often claim that more records and information in government hands means catching more criminals, terrorists, tax scofflaws, and so forth. However, government demands for more records about citizens in our digital age increasingly conflict with the Fourth Amendment’s central aim, which is, according to the Supreme Court, “to place obstacles in the way of a too permeating police surveillance.”
The Framers of the U.S. Constitution were deeply troubled by the “general warrants” and “writs of assistance” that gave British officials broad discretion to ransack Americans’ homes and chests for incriminating material for future prosecutions. Consequently, the Fourth Amendment generally prohibits the search of our “persons, houses, papers, and effects” for intimate or incriminating personal records until government officials have probable cause and obtain a warrant that specifies what will be seized. The Framers believed the preservation of liberty outweighed whatever efficiency is gained by allowing vague “general warrants” to ferret out possible wrongdoing.
As federal and state law enforcement agencies demand more information about citizens, the tension between the Fourth Amendment’s protections and law enforcement’s need for information poses a recurring question: Who owns the ever-increasing number of digital records that we each create? Is it tech companies and service providers, or us—the customers?
Last fall, the Supreme Court of Colorado decided Colorado v. Seymour, a case involving an act of arson that killed a family. One of the defendants sought suppression of his incriminating Google search history. The case is full of weighty Fourth Amendment issues—like the lawfulness of local officers’ “reverse keyword warrant” compelling Google to sift through the search histories of hundreds of millions of its users and provide police a suspect list, whether Internet users have an expectation of privacy in their browsing histories, and the extent of the good-faith exception to the exclusionary rule. The many issues at play almost obscure the court’s most significant holding: that police had “seized” the defendant’s digital records under the Fourth Amendment when police copied his Google search history records during their investigation. This determination rendered the third party doctrine inapplicable and required the court to tread on new legal ground.
The case has already initiated an important legal debate as each of us—and the government—increasingly rely on digital and Internet service. For centuries, important records—banking and tax information, stock certificates, personal diaries, correspondence to business partners and family, love letters, political pamphlets, travel itineraries, and the like—were tangible and personal possessions. These were stored, if at all, in chests, under beds, in safe deposit boxes, and in attics and basements.
