Document Type

Article

Publication Year

2018

Journal Title

Temple Law Review

Abstract

For nearly 200 years, an individual’s personal papers enjoyed near-absolute protection from government search and seizure. That is no longer the case. With the widespread adoption of cloud-based information processing and storage services, the third-party doctrine operates to effectively strip our digital papers of meaningful Fourth Amendment protections.

This Article presents a new approach to reconciling current third-party doctrine with the technological realities of modern personal information processing. Our most sensitive data is now processed and stored on cloud computing systems owned and operated by third parties. Although we may consider these services to be private and generally secure, the law does not currently require the government to obtain a warrant to access our information. The third-party doctrine creates a sweeping exception to the warrant requirement for any information exposed to a third party—even where that third party is an automated computing system rather than a human. As a result, our personal papers now receive no more protection than any other piece of potential evidence. In practical terms, they receive less. This ahistorical approach undermines the essential balance between an individual’s interest in privacy and the public’s interest in law enforcement. Many have identified and tried to rectify the privacy problems created by this shift, but it has proven difficult to articulate a limitation to the third-party doctrine that is both consistent with existing principles and feasible in practice.

The Article begins with the intimate connection among freedom of thought, privacy of thought, and the longstanding enumeration of “papers” as a distinct object of Fourth Amendment protection. This historical understanding, which prior generations recognized intuitively, now finds strong support in contemporary cognitive science. Modern models of human cognition reveal how papers serve as cognitive artifacts performing cognitive tasks. These models furnish a set of proxy characteristics for reliably singling out those personal papers whose protection would most likely serve constitutional values. The result is a coherent and workable method for bringing needed discipline to the third-party doctrine and restoring equilibrium to information privacy.

First Page

55

Last Page

105

Num Pages

51

Volume Number

91

Issue Number

1

FIle Type

PDF

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.