Dec 202010
 
 December 20, 2010  Court, Online

FourthAmendment.com points us to a new law review article: The Fourth Amendment and the Brave New World of Online Social Networking by Nathan Petrashek, 93 Marq. L. Rev. 1495 (2010).  From the introduction:

During a recent visit to the University of Florida Levin College of Law, Associate Justice Clarence Thomas was asked whether he believed the Court has kept pace with rapidly shifting technological changes. According to Justice Thomas, technological change within the Court was less important than that occurring on the outside:

[It‘s] changed the way we work, but it‘s also changed some of the issues. . . .  I think you all are in for some interesting times because there used to be these zones of privacy. . . .  Things were over here in the private sphere and then the public sphere was over here.  Now look how [they‘ve] merged.  You put something on your Facebook, [and] it‘s there on somebody‘s hard drive forever. . . . We also see it with respect to how the government can obtain information in the criminal justice context.  [The government doesn‘t] actually have to come onto property now, to look into your private affairs. . . .  I think you all are in for the brave new world of technology in a way that we, of course, couldn‘t have anticipated.2

[…]

This Comment evaluates whether social networking users maintain a reasonable expectation of privacy in their online social networking activity such that police scrutiny is subject to the Fourth Amendment‘s warrant requirement. Part II explores the contours of a social networking web site and describes its operation. This Part considers the origins of the social networking phenomenon and examines two of the largest social networking web sites, Facebook and MySpace, in some detail. Part III explains the social
benefits derived from social networking and the risks involved, including the increasing risk of police surveillance. Part IV describes the current state of Fourth Amendment search doctrine and explains why it is a poor lens through which to analyze a user‘s online social networking content. Part V discusses
the consequences should courts refuse to protect online user content. Finally, Part VI concludes that courts should recognize, in most circumstances, users‘ asserted privacy expectations in their online social networking content.

You can download the article from Marquette Law Review.

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