A new article by Orin Kerr to add to my must-read list: Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010). The Abstract:
This Article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.
Note: I expect to see a lot of discussion of this article, although Orin’s previously raised the “technology-neutral” approach before and it’s been discussed by others many times. Criminal defense attorney Scott Greenfield is one of those who do not embrace Orin’s approach, as Scott explains here. Orin’s posted a note on The Volokh Conspiracy about the article, so readers may also want to check there for comments. I’ll be adding links to other commentaries over time.