Do You Have Any Legal Right To Privacy For Information Stored Online?

from the there's-a-legal-fight-brewing dept

A year and a half ago, we had an interesting discussion here about whether or not the Fourth Amendment and your right to privacy extended to information you stored online via any sort of "cloud" service. The arguments basically fell into two camps, with some citing the "third party doctrine," which basically says that once you gave up info to a third party, you no longer have any right to expect it to be kept private. This argument came from a lawsuit (Smith v. Maryland) that basically said phone numbers you dialed were not "secret" because you were supplying them to the phone company. Of course, the other side of that argument is that it's ridiculous to extend this concept to online storage, noting that the Supreme Court had recognized in the Katz case (about wiretapping public pay phones) that the Fourth Amendment applies to "people, not places."

It looks like this debate is kicking off again, with a discussion on over whether or not the Fourth Amendment covers information stored in "the cloud." It tackles some of the same ground that we covered a while back, but points to a recent law review paper on this topic (pdf) by David A. Couillard.

The paper does a good job separating out the thinking here, and explaining why the Fourth Amendment absolutely should apply to information you store online. As it notes, while the Smith case said that phone numbers dialed might not be private, that did not extend to the contents of the phone call itself. And that's key. The reason that the phone company gets the phone numbers dialed is because that information is key to it delivering its service of connecting the phone call. So you can make a reasonable argument that while such information (the information needed to initiate a service) might not be subject to privacy protection, everything else communicated or stored via that service still deserves those protections.

The issue is that right now we really don't know how the courts feel about this -- and you can bet this is going to become an issue that shows up in the court system before too long. Hopefully, the courts will recognize that any "third party doctrine" when it comes to the Fourth Amendment is limited to a very narrow subset of information provided for a particular purpose, rather than all information stored on third party servers.

Filed Under: cloud, fourth amendment, information, privacy, storage

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  1. identicon
    AndyB, 19 Jan 2010 @ 6:08am

    The real problem.

    The real problem is that the 4th Amendment (and most other Constitutional protections) only apply to the government. The FBI can't collect databases of information on citizens? No problem! They just buy the same information from any of the aggregators that know more about your life than you do and avoid all those pesky governmental restrictions.

    The Constitution was written at a time when issues like this couldn't be imagined. The threat was government, not private entities. Today private entities are by far the bigger threat to privacy.

    My belief is that the core change that will do the most good is making private information about me my 'property' which requires my permission to duplicate/transmit/sell/disclose without a warrant. We bend over backwards expanding IP rights that restrict what we can do with "ideas" yet don't seem to care about the - much more important in my view - intimate information our lives.

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