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Article
'I Know My Rights, You Go'n Need a Warrant For That:' The Fourth Amendment, Riley's Impact, and Warrantless Searches of Third-Party Clouds
Berkeley Journal of Criminal Law (2014)
  • Laurie Buchan Serafino, Duquesne University School of Law
Abstract

Scholars have frequently suggested that the Fourth Amendment ought to be applied with varying degrees of rigor depending on the seriousness of the crime investigated. Courts have largely rejected such an offense-specific approach to constitutional protections, but have demonstrated deference to the Executive Branch in matters of national security in other contexts. The particularly heightened concern raised by the threat of terrorism suggests that, at least in the context of these most serious of cases, courts ought to engage in some form of balance that recognizes the uniquely strong government interest. Such an approach, however, has to recognize that the ease of electronic surveillance, and the commonplace transmission or storage of electronic data, provides the government an easily obtained treasure trove of an individual's life. An approach that balances these acute concerns is therefore required. Edward Snowden’s revelations divulged that with a great deal of ease, the National Security Agency is systematically conducting warrantless searches of the contents of Americans’ text and email communications, collecting information it alleges is useful for the war on terror. This article suggests that cloud-based data should be protected by the Fourth Amendment and should be treated like information stored in a home or office, which has well-defined Constitutional protections. But, recognizing national security concerns, the article recommends six factors that can rebut that presumption of protection. The article will explore the constitutionality of the statutes governing this area, the Foreign Intelligence Surveillance and Stored Communications acts, and consider whether the special needs doctrine should be applied to dragnet searches. The article will conclude that in times of national security, rules governing the Fourth Amendment can be relaxed, but evidence obtained without a showing of probable cause must be inadmissible in a subsequent prosecution unrelated to that national security investigation.

Keywords
  • Fourth Amendment,
  • Edward Snowden,
  • NSA,
  • Cloud,
  • Metadata,
  • Special Needs Doctrine,
  • Internet Service Provider,
  • Third-Party Doctrine,
  • Foreign Intelligence Surveillance Act,
  • Stored Communications Act,
  • National Security Administration,
  • Technology,
  • Internet
Disciplines
Publication Date
October, 2014
Publisher Statement
Originally published in Berkeley Journal of Criminal Law (Fall 2014)
Citation Information
Laurie Buchan Serafino. "'I Know My Rights, You Go'n Need a Warrant For That:' The Fourth Amendment, Riley's Impact, and Warrantless Searches of Third-Party Clouds" Berkeley Journal of Criminal Law (2014)
Available at: http://works.bepress.com/laurie_serafino/7/