I’ve been meaning to get this blog off the ground for some time now, and this article over at Ars Technica (a must-read for anyone interested in law and technology) about the application of the Fourth Amendment to cloud computing finally gave me the motivation I needed. The article is a fantastic overview of many of the issues I intend to write about on this blog, and several issues raised are worth discussing.
The article correctly points out that the biggest obstacle facing the recognition of a Fourth Amendment right to privacy in the information we store in the cloud is what is known as the third party doctrine. In a case analogous to storing email, photos, and other personal information with service providers like Yahoo! and Google, the Supreme Court in Smith v. Maryland invoked the third party doctrine in declining to recognize a right to privacy in telephone numbers dialed and subsequently routed through a telephone service provider’s switching equipment. The Court reasoned that when a phone call is placed, the numbers dialed are “conveyed” to the telephone company. At that point, a reasonable person should recognize that those numbers will be monitored and recorded by the company’s equipment for billing and other purposes. Because a person voluntarily gives the phone company access to that information by utilizing its services, she cannot reasonably expect that information to remain private. It is important to point out, however, that the Court’s decision turned on the fact that the actual contents of the conversation were not monitored or recorded. Consequently, any expectation of privacy in the actual conversation would still be reasonable.
This is the problem facing communications and information stored in the cloud. Under the Court’s precedent, information that a user should understand will be monitored by a third party renders an expectation of privacy in that information unreasonable, thereby excluding it from Fourth Amendment protection. » Read the rest of this entry «