After Jones, the deluge: the Fourth Amendment's treatment of information, big data and the cloud.

AuthorBerk, Lon A.

New technologies force us to re-examine theories, no less in law than in science. Information technologies have radically changed social and commercial interactions, providing communication, access to data and computation resources on a scale barely imaginable just fifty years ago, let alone in the eighteenth century. But with these benefits have come threats as well. In particular, the use of information technologies vastly increases the scope and possibility of governmental and private parties' interference with and surveillance of individuals, and, as a result, creates severe tensions on the jurisprudential theories used to protect basic liberties and privacies. (1) The National Security Agency's internet and surveillance activities revealed this summer by Edward Snowden are one symptom of these tensions. (2) As our technological abilities increase, so do the threats to basic liberties.

In this essay, I examine one of these tensions by looking at the impact of cloud computing on Fourth Amendment rights. (3) Current Fourth Amendment jurisprudence leaves a gap that threatens to swallow the whole of the Amendment's protections when applied incautiously in our current technological milieu. (4) This is at least in part because that jurisprudence developed during times when technology imposed limitations not only upon surveillance, but, perhaps as importantly, upon the nature and volume of the papers and effects citizens, individually and collectively, had the power to create, use, and possess. (5) The availability of technological innovations, including in particular, cloud computing, has vastly expanded what citizens can create and use and hence what governments can seize and search. (6) Moreover, cloud computing has done so in a manner that exposes certain shortcomings in current Fourth Amendment jurisprudence. (7)

The use of mobile computing devices has enabled citizens in their personal and business lives to access and appropriate as their own a vast amount of valuable information. (8) Cloud computing has made this ever more available and economical so that an ever increasing number of ordinary commercial and personal relationships are mediated through "the cloud." (9) As a result, a realistic analysis of the property, papers and effects of individuals can no longer be limited to what was available using 18th, 19th and even many 20th century technologies. (10) Rather, what we are able to document and create--to appropriate from the information commons--has been expanded well beyond what our predecessors were able to do and, perhaps, even conceive of doing. (11) As a result, the ordered liberty our constitution protects needs to be understood in the context of our technologies and this, I argue below, may require a shift in some aspects of our present Fourth Amendment jurisprudence that, perhaps, more keenly reflects the assumptions and intentions of its original drafters.

One might contend that because the nature of current information technology was not foreseen and perhaps not foreseeable by the Fourth Amendment's drafters, the Amendment has no application to that technology. (12) Such a view, however, would in effect concede that the Amendment has no application in our present environment. (13) It is a premise of this paper that Fourth Amendment jurisprudence must take account of the technology ordinary citizens employ and the property they create using that technology when applying the Amendment's protection. (14) The security the Amendment expressly protects is not one that depends upon the state of technology. (15) Unfortunately, current jurisprudence does not recognize this fact and, consequently, threatens to undermine the very "ordered liberty" some have held the Amendment and constitutional provisions were designed to protect. (16)

Section I

Cloud Computing and Big Data

Both commercial and personal computation make wide use of what is called "cloud computing." (17) Under certain circumstances, cloud computing can lead to the development of huge databases, which when mined, can provide clients and providers with useful in formation. (18) Rather than possessing, maintaining and controlling their own data and computation resources, businesses and individuals are increasingly relying upon third-parties to provide and maintain both their data content and computation resources. (19) The widespread use, for example, of tablets and smartphones is only possible because their users exploit computational resources located not on their devices, but on servers elsewhere. (20) Under this model, access to hardware and software applications is provided to businesses and individuals by third-parties through network connections. (21) Even relatively mundane matters, such as entering an appointment in a calendar, may make use of the cloud. (22) For instance, when an appointment is entered on a smart phone's calendar through a voice instruction, the phone converts the instruction into a digital form and transmits it over a network to software on a server located elsewhere. (23) This process employs a voice recognition algorithm, owned by the provider, but used by the client, to translate the voice instruction into the programming language of the device, which is then transmitted back to the device. (24) Thus, the full use of mobile computing devices inextricably involves permitting third-parties--the cloud and network providers--access to information the consumer may treat as, and believe is, private. (25) A consumer of these services may also keep his or her records, including tax returns and other financial information, health records, books, music and virtually any other imaginable content, on a server maintained by a cloud vendor, such as Amazon or Google. (26) Equally, the user may track, save, and search for locations using the provider's computational resources. (27) Modern consumption of computation services involves permitting third party possession and--to some degree--control of private, confidential information. (28)

The cloud consumer is known to use both storage and computation capacity only when it is required. (29) Cloud computing makes the use of computation resources more efficient, and hence more affordable and widespread. (30) Through programming techniques called "virtualization" that effectively permit a single server (or server group) to appear and operate as multiple servers, multiple businesses and individuals can operate their own computation systems on a single server system, obtaining the benefits of owning their own system without the expense of acquiring and maintaining the hardware. (31)

Given these advantages of cloud computing, its frequency will increase as its advantages over individual ownership of computation resources become more widespread; or, as one commentator describes it:

The shift toward cloud computing is driven by many factors including ubiquity of access (all you need is a browser), ease of management (no need for user experience improvements as no configuration or back up is needed), and less investment (affordable enterprise solution deployed on a pay-per-use basis for the hardware, with systems software provided by the cloud providers). Furthermore, cloud computing offers many advantages to vendors, such as easily managed infrastructure because the data center has homogeneous hardware and system software. Moreover, they are under the control of a single, knowledgeable entity. (32) Indeed, we have witnessed the impact of these incentives, with cloud computing expanding among consumers and businesses for personal and commercial computation needs.

The result of cloud computing has been not only a more efficient use of computation resources but a more equitable distribution. (33) People are able to obtain the benefits of massive data storage and computation capacity without the expense of investing in the hardware required. (34) Furthermore, under certain circumstances, cloud computing vendors may combine data regarding their users' transactions and analyze that data to their, and their users', advantage. (35) Examples of this phenomenon include iTunes software which permits users to upload their music to Apple servers, allowmg them to analyze collections and determine the tastes of their users. (36) For example, they may find that there is a 90% chance that users liking music by one artist commonly also have a propensity for another artist and can then recommend this new artist to that user. (37) The vendors' collection of this data thus works to the benefit of both the vendor itself as well as its customers. (38)

There is no need to focus on the actual intricacies of cloud computing or the collection of "big data." What is essential for our purposes is that individuals in effect share computational resources maintained by a third-party for both storage and computations and, under some circumstances, permit that third-party to analyze a data base generated from all information collected. (39) The key element in these transactions for our purposes is: a consumer or client with a computing device (oftentimes mobile) that transmits information over a network to a cloud provider that owns and maintains computational infrastructure on which data is stored and computations performed. (40) Consequently, a critical aspect of cloud computing is that the user's information must, at least for a time, be held by and within the control of third-parties--the cloud vendor and the network owner(s). (41)

It is this fact that creates problems under current Fourth Amendment jurisprudence. (42) A personal diary may for example be maintained in a document stored on Google servers and updated from multiple computing devices. (43) In effect the user's papers--the effects of their intellectual efforts--are created and maintained at a location distant from the user. (44) The consumer may also use a map application on a server to obtain directions. (45) Current Fourth Amendment...

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