The Fourth Amendment and the Cloud

CNET has up a blog post examining the question: does the Fourth Amendment apply to data stored in the Cloud? The US constitutional amendment forbidding unreasonable searches and seizures is well settled in regard to the physical world, but its application to electronic communications and computing lags behind. The post's argument outlines a law review article (PDF) from a University of Minnesota law student, David A. Couillard. "Hypothetically, if a briefcase is locked with a combination lock, the government could attempt to guess the combination until the briefcase unlocked; but because the briefcase is opaque, there is still a reasonable expectation of privacy in the unlocked container. In the context of virtual containers in the cloud...encryption is not simply a virtual lock and key; it is virtual opacity. ... [T]he service provider has a copy of the keys to a user's cloud 'storage unit,' much like a landlord or storage locker owner has keys to a tenant's space, a bank has the keys to a safe deposit box, and a postal carrier has the keys to a mailbox. Yet that does not give law enforcement the authority to use those third parties as a means to enter a private space. The same rationale should apply to the cloud." We might wish that the courts interpreted Fourth Amendment rights in this way, but so far they have not.

The 4th amendment grants government.

[tjstork]

It is worth noting that under the Constitution, there is no federal power to search or seize, at all. Thus people who say that the 4th amendment doesn't list something as protected, like a computer file, miss that point. The 4th amendment is that the government is allowed to search mail, with a warrant, and nothing else.

Re:US Border Laptop Searches

[eln]

The Fourth Amendment has long been held to apply to all people under US jurisdiction, whether citizens or not. However, as stated by another reply to your post, the Supreme Court has ruled, rightly or wrongly, that it does not apply to border searches. So, by current law, the government is within its rights to search you at the border regardless of your citizenship status.

It's a fallacy to state that the rights outlined in the Constitution (particularly the Bill of Rights) are granted only to citizens. The Constitution makes distinctions between "citizens" and "persons" all over the place. When the Constitution refers to "persons" or "people" (as it does in the fourth amendment), it is referring to ALL people, citizen or not. The founders believed in the concept of inalienable rights, which are rights granted to all people (or at least all white males in their day) by their Creator. The purpose of enumerating some of the more important of those rights in the Constitution was not to grant them, but to prevent the government from infringing on them.

How much the government has infringed on them anyway is, of course, a matter of much debate.

Re:US Border Laptop Searches

[dollargonzo]

I think an easier way to look at it is that it applies to the government, in that the articles place restrictions on what agents of the government can and cannot it. e.g.:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

...by the government

Re:The 4th amendment grants government.

[edittard]

The actual text would appear to disagree.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The last bit seems to list a set of preconditions which, if met, do allow it.

Re:US Border Laptop Searches

[dkleinsc]

In the case of the Third Amendment, in its one and only significant use, it was upheld:
http://en.wikipedia.org/wiki/Engblom_v._Carey [wikipedia.org]