CHAPTER 11 Cloud Computing and Reasonable Expectations of Privacy: Fourth Amendment Concerns
Matthew P. Breuer and James P. Martin
Despite the growing complexity of cloud computing as an issue in litigation and discovery, much of the ideology that has driven the Supreme Court’s treatment can be traced back to basic, fundamental constitutional principles.
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.1
When the government obtains information by physically intruding on a constitutionally protected area, a “search” within the original meaning of Fourth Amendment has occurred.2 This occurs when an “expectation of privacy that society is prepared to consider reasonable is infringed.”3 Pursuant to the Fourth Amendment, a “seizure” of property occurs “not when there is a trespass, but when there is some meaningful interference with an individual’s possessory interests in that property.”4 Evidence obtained from these types of intrusions is inadmissible in court.5 Until 1961, the Fourth Amendment did not apply to states until the Supreme Court held in Mapp v. Ohio that evidence obtained by illegal searches and seizures were inadmissible in a state court.6
Endless litigation ...