In an article I published with the National Constitution Center earlier this year, I laid out a fully consistent way to apply the Fourth Amendment in the digital era. The Supreme Court has struggled with constitutional protections for communications and data, but there doesn’t need to be different doctrine for physical things and for digital things. Data can be seized under the Fourth Amendment just like people and cars. Data can be searched just like homes.
In a methodical Fourth Amendment analysis, the next question is who can object to those seizures and searches. Today, various third-party services have control of the data, and some think that closes the question, but it doesn’t. The “right to possession” is only one of the property rights. Those contracts have allocated to consumers the “right to exclude” others—that is, to keep strangers away from data about them. The data may sit with a telecom provider, a crypto exchange, a cloud service, or an ISP, but our privacy comes from denying them any right to share data other than with parties agreed to in advance under conditions agreed to in advance.
When possession of data is with a service provider but the right to exclude and other rights are held by the consumer, the consumer has a right against unreasonable searches and seizures. In all but the narrowest of cases involving exigency and similar circumstances, that means the government has to go get a warrant.
Getting courts to recognize property rights in data is a big effort, and it’ll take a lot of work over a lot of years. But it is essential work because it will determine the shape of our future world.
There’s a path into the future where the Internet revolution causes the individual to become a pawn of governments and corporations—working together, as often as not, to determine many, many dimensions of how we live and earn. Down the other path is a future where property rights in data make us even more free and autonomous in the digital realm then we are in our homes, neighborhoods, and marketplaces. Here’s to charting our course down that second path.