We found a match
Your institution may have access to this item. Find your institution then sign in to continue.
- Title
DIGITAL BAILMENTS.
- Authors
O'Connor, Michael J.
- Abstract
We send e-mails using Google's Gmail, access the Internet through Verizon's towers, and host our private files on Dropbox's drives. Against this backdrop, the Fourth Amendment faces a digital paradox: because a user's "reasonable expectation of privacy" defines its protections, users have no privacy. Users cannot expect privacy when they voluntarily disclose documents to third parties. If we base our privacy from the Government on our privacy from tech companies, then we are left with none at all. This Article advocates a different approach. For almost a decade, the Supreme Court has suggested that property rights provide an alternate path to Fourth Amendment protections. But neither jurists nor scholars have yet tried to apply this doctrine to digital papers. This Article suggests three guiding principles. First, constitutional property protections depend on underlying state property rights. Though the constitutional protections remain the same, the underlying ownership rights shift as we adopt and discard new property law. Second, and surprisingly, the Court has never defined when a property right proves sufficiently house-, paper-, or effect-like to create a constitutional interest. But common law materials, caselaw, and scholarship all indicate that the right to exclude others makes something your property. Third, modern laws like the Stored Communications Act grant information sources the right to prevent recipients from propagating that information. This exclusion right triggers constitutional property protections. With this new foundation for a property-focused digital Fourth Amendment, hopefully we can reclaim in some small measure what Samuel Warren and Louis Brandeis called "the right to be let alone".
- Subjects
UNITED States. Constitution. 4th Amendment; GMAIL (Web resource); PRIVACY; INTERNET; PROPERTY rights; COMMON law
- Publication
University of Pennsylvania Journal of Constitutional Law, 2020, Vol 22, Issue 5, p1271
- ISSN
1521-2823
- Publication type
Article