The Fourth Amendment Right To Delete
Responding to Orin S. Kerr, Searches and Seizures in a Digital World , 119 Harv. L. Rev. 531 (2005)
For years the police have entered homes and offices, hauled away filing cabinets full of records, and searched them back at the police station for evidence. In Fourth Amendment terms, these actions are entry, seizure, and search, respectively, and usually require the police to obtain a warrant. Modern-day police can avoid some of these messy steps with the help of technology: They have tools that duplicate stored records and collect evidence of behavior, all from a distance and without the need for physical entry. These tools generate huge amounts of data that may be searched immediately or stored indefinitely for later analysis. Meanwhile, it is unclear whether the Fourth Amendment’s restrictions apply to these technologies: Are the acts of duplication and collection themselves seizure? Before the data are analyzed, has a search occurred?
If anything, Professor Kerr underestimates (or undersells) the threat to privacy of constitutionally unregulated imaging. At the same time, his attempt to distinguish Hicks is a bit unconvincing and arguably unnecessary. In Hicks, the Supreme Court held that the police did not seize the serial number inscribed on the bottom of stereo equipment by copying it down, since the act of copying did not interfere with the owner’s possessory interest in the serial number or equipment. Hicks relies on the standard definition of seizure — meaningful interference with a possessory interest — a definition rarely satisfied when the police grab digital evidence.
But there is another sense in which courts have construed seizure, embodying a previously unidentified Fourth Amendment interest: the right to delete. This right can be found in the Constitution once one looks beyond physical-property-based notions of seizure, which fit so poorly in the digital world, in favor of an approach that asks: “Can a digital copy cause the same negative effects as physical dispossession?” The answer is yes; when an owner loses control of a copy of her data, she loses the ability to dispose of or alter that data, which I contend causes a form of seizure. This is analogous to the property right to destroy, which is tied to the rights of dominion and control. The Fourth Amendment prohibition on unreasonable seizure should protect these rights and provide a constitutional right to delete
The right to delete explains why imaging is seizure without requiring Hicks to be overruled or otherwise conflicting with existing jurisprudence. It will also help determine the Fourth Amendment status of the ongoing data collection of heat emanations, keypresses, monitor images, WiFi communications, GPS tracks, web browsing records, and new technologies yet to be invented. Ultimately, a physical-property-based reading of Fourth Amendment seizure fails to properly translate the Amendment’s protections to intangible, digital property.
119 Harv. L. Rev. F. 10 (2005) | DOWNLOAD PDF
