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Document Type

Article

Publication Date

2023

Publication Title

Boston University Law Review

Abstract

The widespread storage of documents through the range of Internet technologies known as “the cloud” offers tremendous convenience but also creates significant risks of exposure to third parties. In particular, law enforcement investigators seeking access to potentially relevant evidence have aggressively and extensively used the Electronic Communications Act of 1986 (“ECPA”) to execute digital searches. But a relatively obscure provision of ECPA, § 2703, allows law enforcement to search a person’s Fourth Amendment “papers” without them ever learning that a warrant has allowed the exposure of their private, sensitive, and possibly incriminating documents. What is more, federal and state law enforcers use their § 2703 secret search power many thousands of times per year, mostly on individuals they will likely never charge with crimes. This practice denies countless cloud users their traditional Fourth Amendment right to notice of a search.

This paper examines the problem of unannounced searches in the cloud and the legal and technological frameworks in which those searches operate. Examining the problem through the frames of communications privacy, constitutional history, and Fourth Amendment doctrine, it concludes that the current practice of unannounced searches under ECPA fails to meet the basic notice requirement at the core of the Fourth Amendment–a foundational civil liberty that is ancient, important, and hard-won, but also hard to vindicate as a practical matter through litigation. Given the practical and theoretical importance of the right of constitutional notice, the paper explains the ancient origins of the right of notice and how it is threatened by the current federal statutory framework for digital searches. At the level of policy, it also identifies the elements that must be incorporated into long-overdue reforms to federal electronic surveillance law that will be needed to bring that law into compliance with basic norms of the Fourth Amendment, and, by extension, the rule of law as it has typically been understood.

Keywords

Cloud Storage, Fourth Amendment, The Cloud, ECPA, Right of Notice

Publication Citation

Jesse Lieberfeld & Neil M. Richards, Fourth Amendment Notice in the Cloud, 103 B. U. L. Rev. 1201 (2023)

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