Academic journal article The Yale Law Journal

Cyberspace, General Searches, and Digital Contraband: The Fourth Amendment and the Net-Wide Search

Academic journal article The Yale Law Journal

Cyberspace, General Searches, and Digital Contraband: The Fourth Amendment and the Net-Wide Search

Article excerpt

New technologies should lead us to look more closely at just what values the Constitution seeks to preserve.

--Laurence H. Tribe, The Constitution in Cyberspace(1)

Black's Law Dictionary defines contraband as "any property which is unlawful to produce or possess."(2) In this Note, I focus on a new class of contraband, digital contraband, in a new enforcement setting, cyberspace. I want to ask what restraints might exist under Fourth Amendment doctrine on the government's ability to discover and prosecute possession of such digital contraband. My attention is focused particularly on an automated, wide-scale search that could hypothetically scan through hundreds of millions of files but would report to authorities only the presence of files containing contraband.

More than just providing insight into law enforcement power in cyberspace, the nature--or lack--of restraints on such a search may provide insights into the Fourth Amendment itself.(3) While the government may never actually conduct the sort of search described in this Note, the Net-wide search provides a concrete and easily visualized case of a "perfect search." This image, in turn, leads us to ask if the power to conduct a "perfect search" would extend unacceptably the reach of government. Justice Potter Stewart once observed that the Fourth Amendment protects "people, not places";(4) the prospect of regular searches for contraband in cyberspace may require us to address the question, "From what?"

Does the Fourth Amendment merely seek to limit the government's ability to discover purely private information, or should the Amendment also serve to restrict the government's access to relevant evidence of criminal activity? In the past, the two limitations were inseparable; the protection from arbitrary searches provided an unacknowledged but potentially quite important pocket of privacy in which individuals might be free to resist the state's demands. The Supreme Court has recognized that the Fourth Amendment constrains the effectiveness of the police, but it has generally cast that constraint as the undesirable but necessary price of protecting innocent citizens from selective application of searches and unjustified invasions of privacy.(5) Even those commentators who have criticized the Court's recent tendency to permit suspicionless searches have framed their arguments in terms of the need to limit police discretion and protect private information the government has no right to learn. As we enter a new age, however, in which it may be possible for the authorities to scan broadly for evidence of illegal conduct without learning anything else, we must ask whether a freedom from such surveillance is not part of the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."(7)

This Note begins with a description of a hypothetical Net-wide search, drawing out those features that make it particularly useful for examining Fourth Amendment doctrine. It then analyzes the constitutionality of such a search under the bright-line, property-based standard that dominated Fourth Amendment jurisprudence from the 1880s through the late 1960s,(8) and compares the relatively high level of protection for individuals under that standard to the low level of protection likely to be applied under the current balancing test. Finally, the Note concludes by sketching some of the important values that inhered in the property-based standard and that would likely militate against any government conduct that approached a "perfect search."

1. The Search

A. Life in Cyberspace

No American with any exposure to the mass media in the 1990s can be unaware of the concept of the "information superhighway."(9) Video, audio, text, and numbers will all be stored and transported as digital data, allowing homes and businesses to connect to each other and to giant information storehouses with an ease never before imaginable. …

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