Academic journal article William and Mary Law Review

Obscured by Clouds: The Fourth Amendment and Searching Cloud Storage Accounts through Locally Installed Software

Academic journal article William and Mary Law Review

Obscured by Clouds: The Fourth Amendment and Searching Cloud Storage Accounts through Locally Installed Software

Article excerpt

TABLE OF CONTENTS  INTRODUCTION I.   BACKGROUND      A. A Reasonable Expectation of Privacy      B. General Fourth Amendment Challenges with         Computers II.  CLOUD STORAGE AND A REASONABLE EXPECTATION OF      PRIVACY      A. Is There a Reasonable Expectation to Begin With?         1. Positive Model of Privacy and the Electronic            Communications Privacy Act            a. Electronic Communication Services            b. Remote Computing Services         2. The Current Law's Future and Policy Judgments      B. The Third-Party Doctrine and Cloud Storage III. CLOUD STORAGE AND LOCAL SOFTWARE      A. Plain View      B. Exigent Circumstances IV.  A POSSIBLE SOLUTION CONCLUSION 


Suppose the police suspect Winston of possessing child pornography on his computer. Acting on that suspicion, authorities secure a warrant to seize and search Winston's computer and all other digital storage mediums at his residence. However, when combing through the files stored on Winston's devices, the police find no trace of the illicit images.

To ensure that the search is thorough, law enforcement officers begin to open separate programs installed on the machine, searching for documents hidden within the applications. One program they open is Microsoft's OneDrive, (1) which provides a list of files that are stored in Winston's cloud storage account. The files, however, are not actually present on his computer's hard drive, or on any other storage medium he possesses. The police do this despite the fact that their warrant specifies only their right to search the contents of Winston's physical drive. Regardless, they can see the files available for download and they seize them anyway. Later, when checking the downloaded data, the police do not find any evidence of child pornography, but they do find documents incriminating Winston of another crime. As it turns out, Winston does not traffic child porn, but he was in fact committing bank fraud.

This seemingly small exploration might appear innocuous on its face, but it carries broad implications for search and seizure law in a digital environment. The warrant gave the police license to search files on Winston's computer and the storage media he owned, but in this instance they did not find incriminating data there. Instead, the police discovered evidence on a remote platform that Winston's computer could access, but the evidence was not stored on his actual computer.

The Fourth Amendment to the Constitution protects citizens against warrantless searches and seizures of their "homes, papers, and effects." (2) Nevertheless, this guarantee is not unconditional; the Supreme Court has recognized several exceptions. (3) Courts face the challenge of applying these standards as society and technology evolve beyond the immediate foresight of the Fourth Amendment's drafters. Winston's predicament highlights not only the general Fourth Amendment difficulties intrinsic to searching computers, but also the added complications of privacy and the Internet.

The aforementioned hypothetical dealt specifically with issues surrounding cloud computing. Cloud computing is a colloquial term for computer services provided remotely over the Internet, rather than by direct local access. (4) Cloud computing has both a private and a public form. A private cloud hosts services to a limited number of people, (5) whereas a public cloud is one offered through a third-party service to general consumers. (6) In particular, cloud storage is a term for storing data and files on remote drives. (7) A user essentially sends their files to another location where the files are redundantly preserved. (8)

Companies providing public cloud storage maintain user data on clusters of networked servers at off-site locations. (9) Users can upload data to cloud servers in various ways, including placing files in a folder that synchronizes with the storage service, (10) accessing the account directly from an Internet browser, or doing so through cloud-linked software installed on a computer. …

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