George Washington University Law Professor Orin Kerr has published an article concerning the internet and the Fourth Amendment protections against unlawful search and seizure of property or person, “Applying the Fourth Amendment to the Internet: A General Approach” (pdf).
The Internet has become an essential part of daily life for millions of Americans. Unfortunately, the many benefits of the Internet have been accompanied by increasing use of the Internet to commit crimes. Use of the Internet for criminal activity poses important new questions for the law of criminal investigations. How should the Fourth Amendment apply to the Internet? What kinds of online surveillance should the Constitution permit? When should the government be allowed to monitor a criminal suspect’s e- mail, web surfing, or instant messaging? […]
This Article presents a general approach for how the Fourth Amendment should apply to Internet communications. It argues that the differences between the facts of physical space and the facts of the Internet require courts to identify new Fourth Amendment distinctions to maintain the function of Fourth Amendment rules in an online environment. It then recommends two key principles to guide the application of the Fourth Amendment to the Internet.
This approach does not try to settle every question in every case. At the same time, it does provide the major guidelines that should frame how courts apply the Fourth Amendment to computer networks. These guidelines create a general framework for how to translate the constitutional protection against unreasonable searches and seizures to the Internet. […]
The broader goal of this Article is to imagine how the traditional rules of police investigations can translate into rules within the new environment of computer networks and computer crimes. It imagines a world in which individuals commit their crimes entirely over the Internet, and it considers how the Fourth Amendment might regulate the government investigations that will follow. It concludes that new facts will trigger the need for new rules to restore the traditional function of the law. By appreciating the differences between how physical and virtual spaces regulate human behavior, it becomes possible to see how the constitutional principles established for a traditional physical environment can apply to the new environment of computer networks.
In a previous article, “Fourth Amendment Seizures of Computer Data” (pdf) Kerr detailed a test for determining when the copying of computer files constitutes a seizure under the Fourth Amendment.