problem of perspective in Internet law, The

Georgetown Law Journal, Jan 2003 by Kerr, Orin S

From the second officer's external perspective, obtaining the e-mail seems quite different from how it looked to the first officer. The second officer sees that he can obtain a copy of the e-mail from any one of four sources: A, who sent the e-mail; the Earth Link server located in California, which kept a copy before sending another copy to AOL; the AOL server in Virginia, which retained a copy in B's account; or B, who received a copy when he logged on and read the e-mail. To avoid tipping off A or B, the officer will probably want to go to the system administrator at EarthLink or AOL to get a copy of the message straight from their computers.

What process does the Fourth Amendment require? The second officer will reason that A sent a copy of the e-mail communication to a third party (the EarthLink computer), disclosing the communication to the third party and instructing it to send the communication to yet another third party (AOL). The officer will ask, what process does the Fourth Amendment require to obtain information that has been disclosed to a third party and is in the third party's possession? The officer will look in a Fourth Amendment treatise and locate to the black letter rule that the Fourth Amendment permits the government to obtain information disclosed to a third party using a mere subpoena.37 The officer can simply subpoena the system administrator to compel him to produce the e-mails. No search warrant is required.

Who is right? The first officer or the second? The answer depends on whether you approach the Internet from an internal or external perspective. From an internal perspective, the officers need a search warrant; from the external perspective, they do not.38

2. Do Search Warrants Allow Remote Network Searches?

Let's consider a second example, one that reverses the implications of the internal and external approaches. Imagine that our two police officers give up on e-mail conspiracies and instead start investigating a local business that is a front for the mob in New York. The officers learn that the mob has stored a full set of records of the mob's illegal activities on the business's computer network. The officers obtain a search warrant to search the New York office of the business for the computer files. Importantly, the Fourth Amendment requires the warrant to be fairly narrow; the warrant must specifically name the place that will be searched ("the business offices of the Mobfront Company, 123 Pine Street, Suite 200") and name the evidence that will be seized ("computer files containing evidence of organized crime activity").39 The warrant gives the officers a limited grant of authority: It allows them to search the precise location of the business for the precise evidence described, and no more.40

Imagine that when the officers execute the search, they find several computer terminals inside the business offices that are connected to the network, but they cannot find the central computer server that stores the network's files. In fact, the network server is located hundreds or thousands of miles away, in another state, or perhaps even another country. The officers will face a question: Does their search warrant allow them to search the terminals inside the business and retrieve the information stored remotely on the network?