Cyberspace, general searches, and digital contraband: the Fourth Amendment and the net-wide search.

• Author: Adler, Michael

New technologies should lead us to look more closely at just what values the Constitution seeks to preserve.

--Laurence H. Tribe, The Constitution in Cyberspace(1)

Black's Law Dictionary defines contraband as "any property which is unlawful to produce or possess."(2) In this Note, I focus on a new class of contraband, digital contraband, in a new enforcement setting, cyberspace. I want to ask what restraints might exist under Fourth Amendment doctrine on the government's ability to discover and prosecute possession of such digital contraband. My attention is focused particularly on an automated, wide-scale search that could hypothetically scan through hundreds of millions of files but would report to authorities only the presence of files containing contraband.

More than just providing insight into law enforcement power in cyberspace, the nature--or lack--of restraints on such a search may provide insights into the Fourth Amendment itself.(3) While the government may never actually conduct the sort of search described in this Note, the Net-wide search provides a concrete and easily visualized case of a "perfect search." This image, in turn, leads us to ask if the power to conduct a "perfect search" would extend unacceptably the reach of government. Justice Potter Stewart once observed that the Fourth Amendment protects "people, not places";(4) the prospect of regular searches for contraband in cyberspace may require us to address the question, "From what?"

Does the Fourth Amendment merely seek to limit the government's ability to discover purely private information, or should the Amendment also serve to restrict the government's access to relevant evidence of criminal activity? In the past, the two limitations were inseparable; the protection from arbitrary searches provided an unacknowledged but potentially quite important pocket of privacy in which individuals might be free to resist the state's demands. The Supreme Court has recognized that the Fourth Amendment constrains the effectiveness of the police, but it has generally cast that constraint as the undesirable but necessary price of protecting innocent citizens from selective application of searches and unjustified invasions of privacy.(5) Even those commentators who have criticized the Court's recent tendency to permit suspicionless searches have framed their arguments in terms of the need to limit police discretion and protect private information the government has no right to learn. As we enter a new age, however, in which it may be possible for the authorities to scan broadly for evidence of illegal conduct without learning anything else, we must ask whether a freedom from such surveillance is not part of the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."(7)

This Note begins with a description of a hypothetical Net-wide search, drawing out those features that make it particularly useful for examining Fourth Amendment doctrine. It then analyzes the constitutionality of such a search under the bright-line, property-based standard that dominated Fourth Amendment jurisprudence from the 1880s through the late 1960s,(8) and compares the relatively high level of protection for individuals under that standard to the low level of protection likely to be applied under the current balancing test. Finally, the Note concludes by sketching some of the important values that inhered in the property-based standard and that would likely militate against any government conduct that approached a "perfect search."

1. The Search

1. Life in Cyberspace

   No American with any exposure to the mass media in the 1990s can be unaware of the concept of the "information superhighway."(9) Video, audio, text, and numbers will all be stored and transported as digital data, allowing homes and businesses to connect to each other and to giant information storehouses with an ease never before imaginable. The same computer that balances your checkbook and processes your letters will work as a gateway to a new world; you will be able to call up this week's episode of Star Trek, peruse Shakespearean sonnets or Hegelian philosophy, video conference with your sister in Hawaii, or wander through L.L. Bean's electronic warehouse. And the gateway will work both ways: From your office or the airport, you will be able to connect to your home to get your video messages, update your calendar, grab a video of your dog to show your colleagues, or double-check the address of a friend in Taiwan.

   Cyberspace may be described as the nonphysical "place" where electronic communications happen and digital data are located. In its most narrow formulation, "cyberspace" is a synonym for the Internet, "an immense network of networks that connects an estimated twenty million computer users by telephone lines to thousands of electronic information storehouses worldwide."(10) Every "futuristic" possibility described in the preceding paragraph is already a reality on the Internet. Not only can one access great storehouses of information from a machine in one's home or office, but one can access that machine from thousands of miles away.(11) Of course, if it is possible for one person to access her own machine through public networks, then it is also possible for others to do so. These others may be invited guests allowed into limited areas of the owner's system to share information, or they may be unwanted intruders who have connected to her computer to search for details about her work, her system, and her life.(12) For the inquisitive, a computer's hard drive can be a treasure trove of information,(13) and if the intruder is sophisticated, the owner may never even realize that anyone unauthorized has accessed her system at all.(14)

   As we enter a world in which people increasingly transact and record their lives on computers, and in which those computers increasingly are connected to public networks, the prospect of a search through one's hard drive seems more threatening. Christopher Slobogin and Joseph Schumacher conducted a survey to measure people's subjective sense of the intrusiveness of various governmental actions, and they discovered that the "tapping into [a] corporation's hard drive" seemed almost exactly as intrusive as a "search of [a] college dormitory room."(15) And while today in 1996 one might plausibly claim that anyone on the Internet has voluntarily assumed a lessened expectation of privacy by connecting, this argument becomes increasingly unreasonable the more digital connections become central to our lives.(160 At an almost unbelievable rate, private life is moving into cyberspace: The Internet is growing at a rate of approximately ten percent per month,(17) and people are using the Net not only to exchange ideas and data but to conduct courtships, financial transactions, and more. Corporate offices are going on-line at a similar rate, connecting individual office computers to the vast potential of the Internet. One has only to look at the wave of billion-dollar mergers and deals in the cable, telephone, entertainment, and banking industries to appreciate how many believe that cyberspace will soon be as ubiquitous and indispensable as televisions, telephones, and radios.(18)

2. The World of "Digital Contraband"

   Of course, the same digital lines that allow people to send videos of their children to each other also allow them to send videos of child pornography to each other. These same lines that can deliver software instantly from a manufacturer can also be used to exchange, at virtually no cost, perfect copies of pirated music, copyrighted photographs, or unauthorized commercial software. Stolen credit card numbers, telephone access codes, and programs designed specifically to break into other computers(19) inevitably find their way through the network. This is the world of digital contraband.

   More precisely, digital contraband is any computer file that, outside of very specific authorized exceptions, cannot be legally possessed. For example, mere ownership of digital videos of child pornography constitutes a federal crime.(20) Similarly, owning a "cracked" copy of a commercial program--one that has been illegally modified to remove licensing protection--is a violation of copyright or contract law.(21) Of course, there are some legal uses of digital contraband,(22) but as with traditional contraband, the mere possession of the analogous digital files would create a strong presumption of illegal activity by the owner.

3. Law Enforcement Cruises the Net

   Just as possessors of digital contraband may use the Internet to transfer files back to their hard drives, law enforcement agencies might use the fact that such hard drives are connected to the Internet to seek out evidence of illegalities. The interest that a law enforcement officer might have in examining the contents of a hard drive is obvious; the trove of information there may yield important insights into crimes that the owner may have committed.(23) At the same time, the privacy interest that an individual may have in the hard drive is also obvious; regardless of whether or not the officer finds evidence of a crime, he may well learn much about the owner's private life in the process of looking through the drive.(24) A number of commentators have written recently about the need for a warrant to ensure limits to the range of the examination--and, consequently, the potential for violation of privacy--possible in a hard drive search.(25)

   All of these commentators have assumed that a human investigator will be examining the hard drive to evaluate its contents. Nevertheless, there are certain types of investigations--particularly those focused on digital contraband--in which no human is needed to determine the presence or absence of relevant evidence. A computer program can be designed, for instance, to search through a hard drive and report only the...