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A Fourth Amendment Model for Computer Networks and Data Privacy
... A third party's authority to consent is based "on mutual use of the property by persons generally having joint access or control for most purposes" (United States v. Matlock, 1974). On a computer network, "[w]hether the system manager has the right to consent will depend upon how the rights of access and control are allocated between the system manager and the user" (Sergent, 1995). ...
Privacy in cyberspace is becoming a dispute issue for the criminal justice system. Initially, we should determine what kind of cyberspace we desire, and then, we can choose a legal platform to get this online environment. Because policing in cyberspace is an inevitable need, the question of what extent the law can protect individuals' expectation of privacy in cyberspace has become an important problem. This study initially explains the legal descriptions of privacy, expectation of privacy, and cyberspace. Then, it discusses the expectation of privacy in cyberspace based on the Fourth Amendment of the United States Constitution. It also presents the current state of the privacy of private life and the privacy of communication in the Turkish judicial system. Özet Sanal âlemde kişisel giz alanı, ceza adalet sistemi açısından tartışmalı bir konu haline gelmektedir. Öncelikle, ne tür bir sanal âlem arzu ettiğimize karar vermeliyiz ve daha sonra bunu çevrimiçi ortama aktarmak için yasal bir dayanak seçebiliriz. Sanal âlemde güvenliği sağlamak kaçınılmaz bir gereksinim olduğu için hukukun sanal âlemde bireylerin giz beklentisini hangi ölçüde koruyabileceği önemli bir sorun olmuştur. Bu çalışma başlangıçta kişisel giz, giz beklentisi ve sanal âlemin hukuksal tanımlarını açıklamaktadır. Daha sonra Amerika Birleşik Devletleri Anayasası'nın dördüncü ilave maddesi çerçevesinde sanal âlemde giz beklentisini tartışmaktadır. Çalışma aynı zamanda Türk adalet sisteminde bugünkü özel yaşamın gizliliği ve iletişim gizliliğini ortaya koymaktadır.
It took nearly a century after the invention of the telephone for the Supreme Court to recognize that the Fourth Amendment could be applied to the content of private telephone conversations. Today, the Internet is in a similar state of limbo, with courts reluctant to grant Fourth Amendment protection to data placed in a medium that has been perceived as inherently public in nature. This perception has begun to shift as Internet technology becomes faster, more widespread, and more mobile. “Cloud computing” has become a trendy phrase to describe this change in the way the Internet is used. Rather than merely a medium of mass communication, the ethereal Internet “cloud” is now used as a virtual platform for storing and interacting with data that is intended to remain private yet accessible anywhere via mobile devices. Although some courts have recently recognized limited protection for emails and text messages, these narrow holdings are not universal. The third-party doctrine further complicates the issue when content and quasi-transactional data is being stored by cloud service providers.This Note argues that, because the Internet has evolved into new uses, data placed in the cloud merits some level of Fourth Amendment privacy protection. This “new” Internet is used and perceived differently, and the courts should acknowledge society’s preparedness to recognize reasonable expectations of privacy in the cloud. Fourth Amendment protection also requires a subjectively reasonable expectation of privacy. Because limited means exist to conceal virtual containers in the cloud, methods such as encryption and password protection should be analogized to virtual opacity rather than the lock-and-key analogy that has been dismissed by some scholars. Finally, courts should acknowledge the landlord-tenant nature of the relationship between the cloud service provider and the user, and thus the use of cloud platforms should not create a categorical waiver of Fourth Amendment protection under the third-party doctrine.
This article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace.
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