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The 4th Amendment in the Internet Age

Protecting our Right to Privacy Online

Wyatt C. Wilson

College of Southern Idaho

COMM 140: Digital Communications

Jennifer Abouzeid

October 30, 2020

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The 4th Amendment in the Internet Age

With so many aspects our lives becoming more reliant on the internet, our personal data

is being put at risk at a frequency that is unprecedented in our history. One of the most pressing

concerns is whether or not our Constitution can provide adequate protections against breaches of

privacy. The 4th Amendment was penned and ratified over 225 years ago and has been subject to

some debate regarding the scope of protections that it provides. However, most would agree that

one of its primary functions is to prohibit unreasonable search and seizure. The text also sets out

some requirements for the issuance of a warrant. These include the requirement of probable

cause which is supported by oath. The 4th Amendment laid in a sort of legal dead zone for around

the first hundred years of our nation’s history as federal investigations were rather rare. It wasn’t

until 1961 that the amendment was confirmed to apply to state and local governments (Skelton,

n.d.). There are some notable issues that this lack of case law has contributed to. These issues

have only been compounded by the new technologies that have been developed in the internet

age. Interpretations of Constitutional Amendments often have a hard time dealing with

technological advancements and this remains true with the Fourth. Constitutional lawyers have

been struggling with issues such as digital possession, data ownership, and online privacy. These

debates are ongoing and the conversation surrounding privacy, the 4th Amendment, and the

Constitution in general will likely outlive all of us. Still it is important for us to understand our

rights, legal protections, and the context in which they exist today.

Government surveillance of electronic communications has existed, in one form or

another, since at least the 1920s. During the prohibition era it became a tool that was commonly

utilized by law enforcement. Although electronic surveillance has been used by the government

for about 100 years it was not until the proliferation of the internet that we see wide spread mass
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surveillance. The scale of data collection that we see today can largely be attributed to the USA

Patriot Act. Born in the aftermath of the September 11th attacks, the act expanded the available

tools and abilities for intelligence agencies to surveil domestically and internationally (USA

PATRIOT ACT, 2001). Before the internet, it was typically individuals being surveilled. Today

we have what some experts call dragnet surveillance. Dragnet surveillance refers to the

collection of data using indiscriminate means and on a mass scale. This practice was ended in

2015 by the USA Freedom Act. The act put a stop to the mass collection of metadata but still

requires companies to retain said data which can be acquired by government agencies with a

warrant. However, this requirement may be circumvented if the company in possession of this

data chooses to cooperate. The ability of companies to share user data was affirmed by the

Second Circuit; “In the circuit court’s view, Internet users “voluntarily” turn over their browsing

information to third parties (Internet service providers) for the purpose of directing and routing

their Internet activity, so they surrender any Fourth Amendment rights they may have regarding

that same information.” (Ulbricht v. United States, 2018, pp. 8-9) Due to this decision, all a

prosecutor needs is to subpoena a company. A subpoena can be written by a prosecutor and only

needs to prove the documents they are requesting are relevant to their investigation (Zwerdling,

2013). These subpoenas can even be used to retrieve data that has been deleted and are often

difficult for companies to fight.

The 4th Amendment has been a key fixture of many contentious debates in the digital age.

Some of which have been a part of online discourse for many years. Very few would disagree

that the Patriot Act pushes the boundaries of constitutionality. Many others would say that it is

entirely unconstitutional. The American Civil Liberties Union views Section 215 particularly

problematic with two breaches. They believe that the Patriot Act allows for warrantless searches
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and does not require the person whose data was searched to be notified (ACLU, n.d.). There have

also undoubtedly been abuses under the act. From unlawful searches and seizures too much more

harmful human rights violations such as indefinite periods of detainment. The case of Ross

Ulbricht is one such case. Ulbricht ran the anonymous black market website, the “Silk Road.”

While investigating illegal activities on the website, multiple pen/trap orders were given to law

enforcement without a warrant because they were deemed relevant to the investigation (Barnes,

2018). In 2015 Ulbricht was convicted of money laundering, computer hacking, and conspiracy

to traffic narcotics and sentenced to two consecutive life terms plus 40 years with no possibility

of parole. To many this may seem like an excessive punishment for a non-violent offense

regardless of the scale, and no matter your opinion of the punishment, it is certain that this case

was built on a warrantless search of Ulbricht’s data. The 4th Amendment was intended to prevent

this type of abuse, however, due to the unprecedented nature of the case and legal standards

being inflexible, it existed in a legal gray area. Unfortunately, this case, as well as a few other

cases involving third-parties, have set the new precedent for what is and isn’t acceptable for

searches involving digital communication.

Determining the efficacy of the 4th Amendment in our modern society will largely come

down to the values of the individual. For the security minded, these powers may seem necessary

to the safety of our nation. However, a person who values privacy above security will likely be

alarmed at how ineffective the 4th Amendment is at protecting our right to privacy in regard to

digital communication. To make things even more complicated the nation is divided on this

issue. In 2014, 47% of people surveyed by Pew said the government had gone too far in

restricting civil liberties and 35% believed they had not gone far enough to protect the country.

The same survey was conducted a year later, with 56% saying they had not done enough to
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protect the country (Maniam, 2016). Clearly public opinion is rather fickle on this issue. If we

desire a consistent standard that will apply to current and future technologies, our country need

to have a constructive conversation about what is important to us. This issue gets very

complicated so it is imperative that we educate ourselves and others on the 4th Amendment and

online privacy so that everyone can make an informed decision. This is a governmental issue so

the only changes that are likely to happen will come from collective action through the vote. If

this issue is important to anyone, the Electronic Frontier Foundation, or EFF, has many great

resources to help educate and get them active in the current discussion about the 4th Amendment

and online privacy.

“In framing a system which we wish to last for ages, we shd. not lose sight of the changes which

ages will produce.” – James Madison

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References

ACLU. (n.d.). SURVEILLANCE UNDER THE USA/PATRIOT ACT. Retrieved from ACLU.org:

https://www.aclu.org/other/surveillance-under-usapatriot-act

Barnes, I. S. (2018, February 5). The Fourth Amendment Still Applies Online. Retrieved from

Cato Institute: https://www.cato.org/blog/fourth-amendment-still-applies-online

Maniam, S. (2016, February 16). Americans feel the tensions between privacy and security

concerns. Retrieved from Pew Reasearch Center: https://www.pewresearch.org/fact-

tank/2016/02/19/americans-feel-the-tensions-between-privacy-and-security-concerns/

Skelton, C. (n.d.). Mapp v. Ohio, 367 U.S. 643 (1961). Retrieved from Justia:

https://supreme.justia.com/cases/federal/us/367/643/

Ulbricht v. United States, No. 17-950 (The Supreme Court of the United States February 2018).

Retrieved from https://www.cato.org/sites/cato.org/files/pubs/pdf/ullbricht-cert-stage.pdf

(2001). USA PATRIOT ACT. United States Congress. Retrieved from

https://www.congress.gov/107/plaws/publ56/PLAW-107publ56.pdf

Zwerdling, D. a. (2013, October 2). Your Digital Trail: Does The Fourth Amendment Protect

Us? Retrieved from NPR:

https://www.npr.org/sections/alltechconsidered/2013/10/02/228134269/your-digital-trail-

does-the-fourth-amendment-protect-us