Jul 142010
 July 14, 2010  Featured News, Surveillance

Paul Ohm has an article in the current issue of the Harvard Law Review, “The Fourth Amendment Right to Delete,” in which he responds to an earlier article by Orin Kerr (2005). Here’s an excerpt from Paul’s article:

Fourth Amendment cases are surprisingly difficult to apply to tools used in a surveillance two-step: collect the data now, analyze the data later (sometimes, much later). Prior to data analysis, has a search occurred? In Kyllo v. United States,7 the Court held thermal imaging of a home to be a search.8 But what would have been the result if the police had stored the information without looking at it? Similarly, what if the police lawfully seize a suspect’s GPS device and copy the device’s internal memory without viewing the record of past movements? Have searches yet occurred in these situations?

Professor Kerr’s description of the forensic analysis of computers9 provides a straightforward fact pattern with which to examine these questions. The forensic analysis of a computer almost always begins with the creation of a bit-by-bit, exact copy — called a “mirror image” or an “image” — which preserves all of the data found on the computer’s hard drive. In his article, Professor Kerr argues that unless and until data from the image are exposed, no search has occurred.10  He worries that during the time after the image is made and before it is analyzed, the Fourth Amendment may not apply since the owner of the original drive has not been deprived of a possessory interest under his reading of Arizona v. Hicks.11

Although he decries this “creepy,” “Orwellian” result,12 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.13 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.

Read the full article here (pdf).

Via FourthAmendment.com

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