The Fourth Amendment and Computers: Reclaiming Privacy

-- By RichardGazon - 12 May 2015

Much has been made about the lack of privacy that individuals in America have in regards to their computers and mobile devices. With the NSA constantly gathering data and the government’s ability to subpoena companies for the information regarding individual’s online activity, the protection of privacy has been eroding with new technologies. And with this developments, the Fourth Amendment appears to be unable to protect the citizens in the age of new technology. However, while the Fourth Amendment may be mostly powerless against surveillance, it can still offer protections on the ground from intrusions on the your rights by law enforcement with regards to your devices. New technology creates difficulties in determining what exactly is an illegal search or seizure. The search of a computer can be very different from a search of a physical location. Accessing a computer provides law enforcement with incredible amounts of data. Once the computer is in the possession of law enforcement, citizen’s must still have protections for its contents. Searches of such devices must be limited to areas related to what the police are investigating, otherwise the search is overbroad and should not be allowed. The plain view exception when applied to computers leads to problems as any cursory search of computer files can lead to any file being in plain view. Without limitation, a warrant on a computer becomes a general warrant to search for anything. This is a complicated issue because of the simplicity of moving and hiding documents and data in hard to find places on a computer, but in the physical world, it is similarly possible to hide information in places where the police are not expected to look. Limiting the scope of searches is an important function of the Fourth Amendment, but unfortunately, courts have generally not protected the constitutional rights of citizens in this area. (US v Williams, 592 F. 3d 511 (5th Cir. 2010)).

Similar questions revolve around the exceptions that law enforcement can use to search something without a warrant. One such exception is the exigent circumstances exception. If the officer is concerned about the possible destruction of evidence, he or she may seize the device to prevent that from happening. The problem lies in the fact that courts view the ability of someone to delete great amounts of data from a device very quickly. Shredding or burning documents in the physical world can take a significant amount of time, but if the information is stored digitally, it is rather easy to remove quickly. The ability to store large amounts of data, which is the quality that makes devices so important to keep private, is also the basis for which law enforcement argue they must be able to take it immediately before obtaining a warrant or else there will nothing search. This creates situations where officers are overly fearful that critical evidence will be destroyed and invoke exigent circumstance to obtain digitally stored information. The Fourth Amendment does provide some protection in this context, as there are several factors to consider before accepting that there was an exigent circumstance. In terms of the destructibility of the evidence, courts have found that just because one has the means, knowledge, and wherewithal to destroy property does not mean he will do so. History of destruction of property plays a role, but so has officer’s testimony that simply states that person’s accused of computer crimes are likely to attempt to destroy evidence. (US v. Trowbridge, 2007 WL 4226385 (N.D.Tex. 2007)) Overall, there are more protections that the Fourth Amendment could provide in this area, but there are restrictions in place to prevent the complete ignoring of the Constitution, despite the relative ease with which some could delete great amounts of digital data in small amounts of time.

Another exception to the Fourth Amendment is the search incident to arrest. This allows officers to conduct searches of an arrested citizen and his belongings. In the context of mobile devices, this presents great challenges to the privacy of individuals. A mobile device stores more information for most people than anything ever carried in the past. Access to a mobile device without a warrant can lead to the discovery of any associates, their phone numbers and possible locations, as well as communications between individuals. But even beyond that, mobile devices can store great deals of information. For years, courts were split on the issue but the Supreme Court decided on the issue in Riley v California (573 US __ (2014)). The court found that such searches are violations of the Fourth Amendment rights. The ability of cell phones to store large amounts of data was critical to the court’s decision. A phone can collect various forms of data, store metadata about that information, and carry information that dates back years. By containing all of this data on a single device, it becomes protected under the Fourth Amendment, in a strange twist from the general concerns relating to data on one’s phone. In this situation, the Fourth Amendment does still hold water and gives rise to hope that it can still be used to protect the privacy of individuals in the world of new technologies.

The government can still surveil and monitor its citizens through various means, but there are still situations in which the Fourth Amendment has the strength to fight back. The everyday interactions of citizens with police cannot be discounted and citizens need any protections they can get for their privacy. New technologies are constantly putting privacy at risk, so the courts showing some propensity to uphold privacy in the context of technology is a welcome sign, even if other areas of government are trampling over the ideal.

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