The Fourth Amendment and the global Internet.

Author:Kerr, Orin S.

INTRODUCTION I. THE TERRITORIAL FOURTH AMENDMENT A. Who Is Entitled to Fourth Amendment Protection? B. The Fourth Amendment at the International Border C. Reasonableness Abroad 1. The Ninth Circuit standard 2. The Second and Seventh Circuit standard D. The Territorial Fourth Amendment and Equilibrium-Adjustment II. VERDUGO-URQUIDEZ AND THE GLOBAL INTERNET A. Should Online Contacts Establish Fourth Amendment Rights? B. How Should the Fourth Amendment Apply when the Government Lacks Knowledge of Whether a Monitored Person Has Fourth Amendment Rights? C. How Should the Law Apply to Monitoring Communications Between Those with and Those Without Fourth Amendment Rights? III. FOURTH AMENDMENT REASONABLENESS AND THE ROLE OF PHYSICAL PLACE A. Should the Border Search Exception Apply to Electronic Transmission? B. Should Fourth Amendment Reasonableness Follow the Person or the Information? C. When Data Is Seized First and Searched Later, Should Reasonableness Follow the Search or the Seizure? CONCLUSION INTRODUCTION

In the last decade, courts and scholars have begun to address how the Fourth Amendment applies to the Internet. (1) They have raised and tentatively answered questions such as whether Internet users have Fourth Amendment protection in e-mail, (2) whether the Fourth Amendment limits the monitoring of visited websites, (3) and whether users have Fourth Amendment rights in their subscriber data stored with service providers. (4) The law is still evolving, and the Supreme Court has yet to weigh in. But the basic parameters of how the Fourth Amendment applies to the Internet have been at least tentatively answered.

Now consider an important wrinkle. So far, almost all of the cases and scholarship applying the Fourth Amendment to the Internet have assumed domestic territoriality. (5) They assume that all of the people, data, and computers are physically located inside the United States. In the early Internet era, that assumption was natural. In the 1980s and 1990s, access to the Internet was dominated by U.S. services such as CompuServe and America Online. (6) For the most part, "the Internet" was a U.S.-based Internet, dominated by U.S.-based companies and U.S.-based users.

That assumption is now obsolete. The last twenty years have witnessed a dramatic globalization of the Internet. At the end of 2013, less than 10% of the world's Internet traffic was attributable to U.S.-based users. (7) Even U.S.-based Internet services now serve predominantly foreign customer bases. For example, 83% of Facebook's users are located outside the United States. (8) Facebook is the most popular website in dozens of countries, including Argentina, Egypt, and Pakistan. (9) Similarly, approximately 70% of Gmail's users are outside the United States, including about 9% in India and around 3% each in Japan, Russia, and Brazil. (10) Many large U.S. providers have servers all around the world to account for their largely foreign customer bases. (11)

The shift to a global Internet has major implications for the future of Fourth Amendment law. Existing cases applying the Fourth Amendment outside the United States indicate that connections to U.S. territory play a significant role in defining protections. Judicial decisions have limited who receives Fourth Amendment protection by requiring a voluntary connection to the United States as a sovereign. (12) Precedents have limited where the Fourth Amendment applies by giving U.S. authorities broad powers to investigate at the international border. (13) Still other precedents have limited how the Fourth Amendment applies overseas, replacing the usual warrant requirement with a reasonableness balancing test when U.S. authorities conduct monitoring outside the United States. (14)

The global Internet brings new salience to the extraterritorial scope of the Fourth Amendment. Territorial concerns that arose only rarely have become increasingly important. Recent disclosures by former National Security Agency (NSA) contractor Edward Snowden hint at the dynamic. (15) As the Snowden disclosures emphasize, the NSA conducts monitoring of Internet activity around the world. (16) And issues for today's NSA will likely become matters for tomorrow's law enforcement. For example, in January 2014, a criminal defendant named Jamshid Muhtorov moved to suppress Internet surveillance of his communications collected outside the United States. (17) Muhtorov, a permanent resident alien from Uzbekistan, was communicating from inside the United States with terrorist suspects abroad when his communications were intercepted by the U.S. government. (18) Muhtorov's motion to suppress raises a host of novel extraterritorial issues: Who has Fourth Amendment rights, based on communications intercepted where, and when communicating with whom?

This Article considers the clash between the territorial Fourth Amendment and the global Internet. It asks how Fourth Amendment law should adapt to the reality of a global network in which suspects, victims, and evidence might be located anywhere. Specifically, this Article raises two sets of questions and then proposes answers to them. The first set of questions considers who has Fourth Amendment rights over the global Internet and the consequences this has for Internet surveillance law. The second set considers how the reasonableness requirement of the Fourth Amendment applies over the global Internet.

The first set of questions grapples with the Supreme Court's decision in United States v. Verdugo-Urquidez, which held that a person must have sufficient voluntary connections to the United States to enjoy Fourth Amendment rights. (19) Under Verdugo-Urquidez, some people in the world have Fourth Amendment rights, and many others do not. The distinction creates three important puzzles to solve before applying the Fourth Amendment to the Internet. First, how should online contacts with the United States factor into whether a person has Fourth Amendment rights? Second, how does the Fourth Amendment apply when the government does not know if a target has sufficient contacts to establish Fourth Amendment rights? And third, how does the Fourth Amendment apply when the government monitors communications between those who lack Fourth Amendment rights and others who have those rights?

The second set of questions assumes that the subject of monitoring has Fourth Amendment rights and considers how Fourth Amendment reasonableness varies depending on where a search occurs. The Supreme Court has held that the government has very broad power to search at the international border. (20) In addition, circuit courts have held that searches outside the United States are governed by standards of reasonableness rather than the domestic standard of a warrant. (21) These location-based distinctions raise three difficult questions that must be answered to apply the Fourth Amendment over the global Internet. First, how does the border search exception apply to Internet transmissions that cross the international border? Second, should standards of reasonableness over the global Internet be keyed to the location of the person monitored or the location where the data is located? And third, if the government seizes data first and then searches it later, should the reasonableness standard follow the jurisdiction where the seizure occurred or where the search occurred?

The conflict between the territorial Fourth Amendment and the facts of the global Internet raise the prospect that the Internet will destabilize Fourth Amendment law. Perhaps the global Internet will minimize the role of the Fourth Amendment, giving the government easy ways to circumvent constitutional protections. On the other hand, the Internet might expand Fourth Amendment protections, restricting the government far more than before. This Article follows an interpretive approach, "equilibrium-adjustment," (22) that rejects these extremes. The theory of equilibrium-adjustment aims to maintain the role of the Fourth Amendment as changing technology and social practice threaten to alter the function of preexisting Fourth Amendment rules. (23) When changing technology substantially expands or restricts government power based on preexisting doctrine, courts can adjust constitutional protection to maintain the role of the Fourth Amendment over time. (24) Applying this methodology to the Internet requires seeking a way to retain the existing role of constitutional protection in limiting police power and avoiding dramatic shifts in police power over the transition from territorial to global facts.

This Article proposes the following answers to the two categories of questions. For the first category, it begins by concluding that online contacts should not create Fourth Amendment protection under Verdugo-Urquidez. The Fourth Amendment should apply only when a person monitored has sufficient physical or legal contacts with the United States. Next, when the government does not know if a person monitored has Fourth Amendment rights, such monitoring should be deemed constitutional as long as investigators had a reasonable, good faith belief that their conduct complied with the Fourth Amendment. Finally, when a person with Fourth Amendment rights communicates with another who lacks Fourth Amendment rights, the government must fully satisfy the Fourth Amendment standards for monitoring the person with Fourth Amendment rights.

This Article also proposes answers to the second set of questions about the reasonableness standard for global searches. First, it argues that the border search exception should not apply to purely electronic transmissions. The border search exception should be limited to physical and tangible property; it should not apply to allow scanning of electronic transmissions that cannot impact what crosses the border. Second, standards of reasonableness should be keyed to the location of the government's search or seizure rather than the...

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