Washington Law Review

Comment

Revising Reasonableness in the Cloud

March 01, 2021 | 96 Wash. L. Rev. 343

Abstract: Save everything—just in caseand search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such communications, the existing protections for them are insufficient under the Fourth Amendment. To prevent broad intrusions into users’ reasonable expectation of privacy, this Comment proposes an approach akin to Berger v. New York, where the Supreme Court invalidated a statute that allowed invasive real-time eavesdropping because the statute did not require sufficient particularization. Like in Berger, seizures of private communications in the cloud should require a warrant based on probable cause that is sufficiently particularized to protect against indiscriminate, large-scale data collection and roving searches by the government.

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