problem of perspective in Internet law, The

Georgetown Law Journal, Jan 2003 by Kerr, Orin S

A. THE FOURTH AMENDMENT IN CYBERSPACE

The Fourth Amendment law of search and seizure offers a rich panoply of situations in which the distinction between internal and external perspectives takes on critical importance.28 More than most areas of law, Fourth Amendment jurisprudence is heavily spatial:29 the rules speak of rights to access some spaces but not others,30 and the constitutionality of a search often hinges on the type of space involved.31 As a result, the choice between internal and external perspectives presents a recurring theme of the Fourth Amendment in cyberspace.

I will explore the impact of perspective on the Fourth Amendment in cyberspace by examining two hypotheticals. Both raise important questions that the courts are just beginning to confront and have not yet resolved. The first hypothetical considers whether the Fourth Amendment requires the police to obtain a search warrant to obtain e-mail from an Internet service provider. The second hypothetical asks whether a search warrant that authorizes the search of a computer connected to a network also implicitly authorizes the search of remotely stored files that are virtually present on the network.

1. Do the Police Need a Warrant to Obtain E-mail?

Imagine that A sends an e-mail to his friend B. Two police officers learn about the e-mail and believe that it may reveal a nefarious criminal conspiracy. The officers agree that they should try to obtain a copy of the e-mail to prove the conspiracy. They confront a legal question: what kind of legal process must they follow to obtain the e-mail? Does the Fourth Amendment require them to obtain a search warrant? Or can they obtain the e-mail with less process than a search warrant? The answer depends largely upon whether they apply an internal or external perspective of the Internet.

Imagine that the first officer applies an internal perspective of the Internet. To him, e-mail is the cyberspace equivalent of old-fashioned postal mail. His computer announces, "You've got mail!" when an e-mail message arrives and shows him a closed envelope.32 When he clicks on the envelope, it opens, revealing the message. From his internal perspective, the officer is likely to conclude that the Fourth Amendment places the same restriction on government access to e-mail that it places on government access to ordinary postal mail. He will then look in a Fourth Amendment treatise for the black letter rule on accessing postal mail. That treatise will tell him that accessing a suspect's mail ordinarily violates the suspect's "reasonable expectation of privacy," and that therefore the officer must first obtain a warrant.33 Because e-mail is the equivalent of postal mail, the officer will conclude that the Fourth Amendment requires him to obtain a warrant before he can access the e-mail.34

Imagine that the second police office approaches the same problem from an external perspective. To him, the facts look quite different. Looking at how the Internet actually works, the second police officer sees that when A sent the e-mail to B, A was instructing his computer to send a message to his Internet Service Provider (ISP) directing the ISP to forward a text message to B's ISP.35 To simplify matters, let's say that A's ISP is EarthLink, and B's ISP is America Online (AOL). EarthLink's computers received A's instructions, copied the text message, and then sent out another copy in the direction of the AOL server. That e-mail crossed the Internet until it arrived at the AOL mail server, which happens to be located in Virginia.36 The next morning, when B sat at his desk and clicked on the icon to read the message from A, B was instructing his computer to send a request to the AOL server to run off a copy of the message and send it to him at his desk.