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Applying the Fourth Amendment to the Internet

Guest Scholar
Orin Kerr
Professor of Law
George Washington University Law School

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.

Fabio Arcila
Associate Professor of Law
Touro Law Center

Kevin Bankston
Senior Staff Attorney
Electronic Frontier Foundation

Vera Bergelson
Professor of Law
Rutgers School of Law

Ira Bloom
Professor of Political Science
Lehman College of CUNY

Jamela Debelak
Executive Director, CLIP
Fordham Law School

Deven Desai
Visiting Fellow, Princeton, CITP
Associate Professor of Law
Thomas Jefferson School of Law

James Grimmelmann
Associate Professor
New York Law School

Sonia Katyal
Associate Professor of Law
Fordham Law School

Andrew Kent
Associate Professor of Law
Fordham Law School

Herb Lin
Chief Scientist, Computer Science and Telecommunications Board
National Academies

Joel R. Reidenberg
Professor of Law
Academic Director, CLIP
Fordham Law School

Sandra Sherman
Assistant Director, IP Institute
Fordham Law School

Olivier Sylvain
Visiting Assistant Professor
Fordham Law School

George Thomas
Visiting Professor, Fordham Law School
Professor, Rutgers School of Law

Felix Wu
Assistant Professor of Law
Cardozo School of Law