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 has been spent on whether or not the protections of the Fourth Amendment should be afforded to individuals during government investigations. This can be attributed to two major factors. The very nature and importance of the Fourth Amendment as one of the fundamental values of the U.S. Constitution has given rise to ample litigation. Given that importance, it has also been difficult to apply this amendment in a consistent and uniform manner to new issues that have come before the court that could have never been contemplated by the original framers of the Constitution.

Case law regarding Fourth Amendment issues has covered a variety of issues that have come before the court, including anything from searches and seizures of personal letters and packages to wireless communications and e-mail. The foundational case law analysis traces several of the earliest Supreme Court rulings regarding this subject matter to more recent case law, which, as the analysis demonstrates, has evolved over time to coincide with technological advances and has also been evident in present-day litigation regarding cloud computing issues.

Ex Parte Jackson, 96 U.S. 727 (1877)

Congress had passed an act to prohibit publications in the mail related to illegal lotteries, gift concerts, enterprises offering prizes, or other publications concerning schemes to defraud the public for the purpose of obtaining money through false pretenses. The petitioner was indicted under this law in the Southern District of New York. The issue before the court was whether or not Congress had the authority to exclude materials it deemed to be obscene from the U.S. postal system.

Although the central issue in this case was whether or not Congress had the authority to regulate the postal system in such a manner, the court engaged in a discussion regarding searches and seizures of packages. The court noted in its dicta that packages and envelopes were allowed to be examined, but any examination could only be superficial by looking at the form and weight of a package. The court extended the constitutional protection of the Fourth Amendment to one’s papers regardless of whether they were in an individual’s domicile or the possession of the U.S. postal system.

This protection, however, could be overcome if a party obtained a warrant under oath that particularly describes the item to be seized. It was imperative for the court to uphold the principle that officials connected to the postal service (or other government officials) would be prohibited to invade the privacy of letters and sealed packages in the mail. As the court noted, “all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the Fourth Amendment of the Constitution.”⁷

Despite its older roots, Ex Parte Jackson still merits discussion because of several of the foundational principles that emerged from the Justice Field’s opinion. One important aspect of the court’s decision is the fact that the justices wanted to ensure that the protections against unreasonable searches and seizures extended beyond one’s own domicile. Despite the fact that an individual’s personal papers may be in the possession of a government entity, i.e. the post office in this instance, this did not permit the government to invade the privacy of the owner of the effects. Ex Parte Jackson established that individuals would be guaranteed a certain level of privacy in their written communications.

Moreover, a key principle still embodied in case law today emerged from the court’s discussion. In their reasoning, the court discussed a dichotomy between examining the package itself and the actual contents. The court permitted superficial searches, such as examining the weight and/or form. However, the court refused to allow a government official to look at the actual contents of a package by opening a sealed package. This concept is incorporated into the Stored Communications Act (SCA), as the prohibitions state that “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.”⁸

Under the SCA, information is stored in three categories: (1) basic subscriber and session information; (2) noncontent records and other information pertaining to the customer; and (3) contents. Content encompasses actual files stored in an account, e-mail text, voicemails, subject lines of an e-mail, and the like. What constitutes content can also vary depending on the jurisdiction and whether the content is held by an electronic communication service (ECS) or remote computing service (RCS). The Jackson case was decided back in the 1800s, but the court was already making a content/noncontent distinction. Moreover, information that could be observed on the outside of the package, such as the routing information, was not subject to Fourth Amendment restrictions.

The court in Ex Parte Jackson was one of the earliest examples of the court recognizing the idea that the contents of a package are subject to a higher level scrutiny and ultimately are afforded more protection. The importance of this distinction is still evident today in the SCA, other legislation pertaining to wireless communications, and recent case law.

Olmstead v. United States, 277 U.S. 438 (1928)

The petitioners were involved in a conspiracy to import, possess and sell liquor unlawfully during Prohibition. Olmstead was convicted in the District Court for the Western District of Washington for conspiracy to violate the National Prohibition Act along with 72 other individuals. Olmstead was the leading conspirator and general manager of the business. Without judicial approval, wiretaps were installed in Olmstead’s building by federal agents, and he was convicted based on evidence obtained from the intercepted messages. Petitioners challenged the conviction arguing that evidence of private telephone conversations intercepted through wiretapping violated their Fourth and Fifth Amendments.

The court concluded that the petitioner’s Fourth and Fifth Amendment rights had not been violated. Because there was no evidence of compulsion to induce the defendants into talking and they voluntarily transacted business without knowledge of the interception, the court’s focus shifted solely onto the Fourth Amendment issue. In deciding that the wiretapping was not a search and seizure, the court noted that the Fourth Amendment did not apply to an individual’s conversation—it applied to a physical examination of one’s person, papers, tangible materials, effects, or home. These types of communications were not protected under the Fourth Amendment. Therefore, the Supreme Court upheld the conviction of the petitioners, ruling that the wiretappings were not searches and seizures pursuant to the Fourth Amendment.

This case was eventually overturned, but it was significant in that it was one of the first cases to address wireless communications with respect to the Fourth Amendment. Until this point, the court had never had to make any decisions regarding Fourth Amendment issues and wireless communications because the eavesdropping technology simply did not exist. The case itself was unchartered waters for the court, which had previously dealt with physical trespass or intrusion into one’s personal effects. Moreover, the Federal Communications Act was not passed for another six years after Olmstead in 1934. This would eventually address the issues brought forth in Olmstead and the Act intended to limit the government’s ability to wiretap, so the court in this instance had very little guidance.

The court took a very literal interpretation of the Constitution, holding that wireless communications were not encompassed by the Fourth Amendment, and that it applied to only one’s persons, papers, tangible material effects, or home. The court’s analysis was very straightforward and engaged in a policy decision to not expand the safeguards afforded by the Fourth Amendment. This could be attributed to the fact that the court was not ready to embrace the technology at the time and as a result did not wish to expand the scope of protection under the Fourth Amendment.

Katz v. United States, 88 S.Ct. 507 (1967)

The petitioner, Charles Katz, was convicted of transmitting wagering information over state telephone lines in violation of federal law. At his trial, the government sought to introduce evidence of the petitioner’s end of telephone conversations over Katz’s objection. The phone calls on Katz’s end were intercepted by FBI agents, who had attached an electronic recording device to the outside of a public telephone booth that he had used to make the phone calls. The Court of Appeals affirmed his conviction, reasoning that there was no actual, physical entrance into the phone booth or the area occupied by the petitioner.

On appeal, the petitioner raised two fundamental issues:⁹

1. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth.
2. Whether the physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the U.S. Constitution.

The court’s analysis stressed the nature of the telephone booth from which the call was made. The Fourth Amendment does not protect what a person knowingly exposes to the public, even in his own home or office. Despite the government’s focus on the booth being glass and the high visibility of petitioner’s activities, the court’s focus was premised on the fact that the petitioner did not want anyone to listen in on his conversation. The court opined that an individual who occupies a phone booth shuts the door, pays the toll for the call and assumes his conversation will not be broadcasted to the public.

Consequently, the government’s activities of electronically listening to the petitioner’s words violated the privacy that Katz justifiably relied upon when using the phone booth. The government in this instance never obtained a valid warrant to justify the search. In addition, the court also maintained that the Fourth Amendment protections are attached to a person, not the place. This constituted a search and seizure under the Fourth Amendment. The court also disregarded the fact that an electronic device did not physically penetrate the wall of the phone booth.

An important aspect of this case is the fact that the court recognized that the Fourth Amendment protects people and not just places. This continued to expand the protection of the Fourth Amendment outside the realm of just a physical location or one’s own dwelling. Moreover, in his concurring opinion, Justin Harlan introduced the idea of a “reasonable expectation of privacy” when discussing what protection it affords to people. Harlan’s understanding of the rule is twofold. The first part of the inquiry is to examine whether the person exhibited an actual (subjective) expectation of privacy, and, second, whether or not society would accept the expectation as reasonable. The critical factor, according to Justice Harlan, is that the phone booth is a private place where occupants have expectations against intrusion.

From a foundational aspect, this case addressed the issue of communications via telephone and was one of the first cases in which the Supreme Court decided that these communications fall within the scope of the Fourth Amendment. The court’s focus here was a simplistic approach into an individual’s reasonable expectation of privacy, and this approach would ultimately be used going forward. As the court noted, one who speaks into the mouthpiece in a closed telephone booth can correctly assume that what he says will not be broadcast to the entire world. It was irrelevant that there no was physical intrusion into the booth by the government.

This idea of a reasonable expectation of privacy has found its way into present day litigation pertaining to cloud computing. Several courts have addressed the issue of whether or not an individual storing information on a cloud has a subjective expectation of privacy and whether that expectation is one society is fully prepared to recognize as reasonable. For example, in Warshak v. United States, officials obtained 27,000 e-mails from the defendant’s Internet service provider (ISP) without a warrant, and the court proceeded with the Katz analysis in the majority opinion. Warshak demonstrated that this reasonable expectation of privacy test could be expanded to the Internet.¹⁰ Perhaps most importantly as well, this case reversed the holding in Olmstead, which would open the door for subsequent litigation.

United States v. Miller, 425 U.S. 435 (1976)

Miller was convicted of possession of an unregistered still, conducting a distiller without giving bond, and intent to defraud the government of taxes owed. Prior to the trial, two of Miller’s banks were subpoenaed for records of his accounts. The banks complied and the evidence was used to convict Miller at his trial. He subsequently appealed alleging that his Fourth Amendment rights had been violated.

After receiving a tip from an informant and then discovering a warehouse full of nontax-paid whiskey and paraphernalia, the Bureau of Alcohol, Tobacco, and Firearms (ATF) issued a subpoena to produce “all records of accounts, i.e. savings, checking, loan, or otherwise, in the name of Mitch Miller . . . from October 1972 through the present date . . . in the case of Citizens & Southern National Bank of Warner Robins.”¹¹ These records were required to be kept pursuant to the Bank Secrecy Act of 1970. Miller never received any notice from the banks that his accounts had been subpoenaed. Agents were shown microfilm records at each branch and were provided with copies of checks, deposit slips, financial statements, and monthly statements. The evidence obtained from the subpoenas was used at a federal grand jury proceeding and also introduced at Miller’s trial.

Miller’s grounds for appeal were premised upon the fact that the subpoena was defective because it was issued by the U.S. Attorney rather than a court, no return was made to a court, and the subpoenas were returnable on a day when a grand jury was not in session. The Court of Appeals agreed with Miller, reasoning that the subpoenas did not adhere to the proper legal process. The government claimed that the Court of Appeals erred in deciding that the respondent had the Fourth Amendment interest “necessary to entitle him to challenge the validity of the subpoenas duces tecum through his motion to suppress.”¹² The government appealed, arguing his Fourth Amendment rights had not been violated and that the warrant was not defective.

In Justice Powell’s opinion, the court distinguished the present case from Boyd.¹³ Miller could not possibly claim ownership or possession over the documents subpoenaed. The documents sought after by the government were business records of the bank. The records of the respondent were related to transactions in which the bank itself was a party, and the bank was not merely a neutral third party. Because the banks were actual parties to the transaction, a subpoena to the institutions was comparable to subpoenaing a normal business for their records.

Miller further argued that as a result of the Bank Secrecy Act, the government could circumvent the requirements of the Fourth Amendment. Because of the recordkeeping requirements of the Act and by allowing the government to directly subpoena a financial institution, the government can obtain a depositor’s records without following the legal requirements that would be required if it subpoenaed Miller directly. In addition, Miller urged the court to adhere to the ruling in Katz by finding that Miller had a reasonable expectation of privacy in the documents he sought to be protected.

The court disagreed. The court reasoned that the checks “are not confidential information but negotiable instruments to be used in commercial transactions.”¹⁴ This information was also voluntarily given to the banks when Miller chose them as his financial institutions. Moreover, the lack of legitimate privacy was contemplated by Congress when enacting the Bank Secrecy Act. One of its purposes was to require records to be maintained so they “have a high degree of usefulness in criminal tax, and regulatory investigations and proceedings.”¹⁵ It is the depositor that assumes the risk by revealing his financial affairs to another who could in turn convey that information to the government.

Because no Fourth Amendment interests of the depositor were affected, the court adhered to the rule that an issuance of a subpoena to a third party does not violate the rights of the defendant. Accordingly, the court held that the District Court properly denied the respondent’s motion to suppress the evidence, since no Fourth Amendment rights were implicated.

Miller was a landmark case in constitutional litigation and specifically with respect to the Fourth Amendment. Miller elaborated on the concept of a reasonable expectation by carving out documents and data considered to be the business records of the service provider which, by definition, do not belong to the individual and the individual could have no claim of privacy. The distinction of business records of the service provider vs records and data of an individual has become a key issue in litigation involving cloud data. The category of business records of the service provider now includes data such as cell tower logs and communication connection records.

In what was a very important decision, the court refused to extend the reasonable expectation of privacy doctrine to records created by a service provider regarding a customer’s activities. The court appeared to have reasoned in such a manner based on the second prong of Katz: The court did not believe society would find a reasonable expectation of personal privacy in the business records of a third party. In addition, the court opined that Miller had voluntarily conveyed his information, and should have realized that the bank would need to create and maintain business records with regard to his account, and the reasonable expectation of privacy became extinguished as a result. Consequently, Miller reaffirmed the concept that an individual’s expectation could be voluntarily waived, an issue courts have addressed when deciding if an individual has voluntarily given up his information to service providers.

Miller also prompted the federal government to enact the Right to Financial Privacy Act. This Act intended to provide financial institution customers a reasonable amount of privacy from intrusion by the federal government. The Act establishes specific procedures that government authorities are mandated to follow when requesting a customer’s financial records from a bank or other financial institution.¹⁶ For example, the government is required to give written notice to the customer, explain the purpose for which the documents are sought, and include a statement describing the procedures a customer could follow if he or she did not wish for those documents to be made available. The holding in Miller would also be limited by Hancock v. Marshall, 86 F.R.D. 209 (1980). This would be one of the first of many examples of the government legislature enacting guidance on discovery procedures for communication being stored by a third-party.

United States v. Jacobsen, 466 U.S. 109 (1984)

United States v. Jacobsen addressed the issue of warrantless searches of letters and other sealed packages. Employees of a private freight carrier observed a white powdery substance emerge from a box that had been damaged by a forklift while being moved. The employees then contacted federal authorities, who removed a sample and later determined it was cocaine after a chemical test.

Consistent with all Fourth Amendment cases, the justices’ decision rested on the specific details of the search and the manner in which it was conducted. The package containing the cocaine was an ordinary cardboard box wrapped in brown paper. Inside the box was a 10-inch tube with five or six crumpled newspapers covering the tube. The tube contained a series of four plastic zip-top bags. The outermost bag enclosed the other three bags, while the innermost contained approximately six and a half ounces of white powder. The employees of the carrier cut the tube open and notified the Drug Enforcement Agency. Before federal authorities arrived, the employees replaced the plastic bags in the tube and put all of the contents back inside the box.

When the first DEA agent arrived, the box was still wrapped in brown paper, but had a hole punched in its side and was open at the top. The agent removed the four plastic bags from the tube and observed the white powder. After removing traces with his knife blade, a field test confirmed that the white powder was cocaine. A warrant was executed to search the place to which the package was addressed, and the respondents were arrested and charged with possessing an illegal substance with intent to distribute. The respondents attempted to file a motion to suppress the evidence as a result of an illegal search and seizure, but they were denied. After being convicted, the respondents appealed and the court of Appeals overturned their conviction. The Supreme Court granted cert due to the fact that the lower court’s decision conflicted with another decision and the role that field tests play in the enforcement of narcotics.

The court’s analysis first determined whether or not the item in question fell under the definition of an “effect” pursuant to the Fourth Amendment. The court noted that “letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy; warrantless searches of such effects are presumptively unreasonable.”¹⁷ However, in his majority opinion, Justice Stevens pointed noted that the first search was conducted by the employees of the private freight carrier. Because the Fourth Amendment protects individuals from searches and seizures by government officials, it was not applicable to the first search of the container performed by the freight company employees. Therefore, the first search of the container performed was not in violation of the Fourth Amendment.

The issue then became whether the subsequent search by the government violated the Fourth Amendment. The court pointed out that “it is well-settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities.”¹⁸ Consequently, in those types of instances, the Fourth Amendment does not prohibit use of that information. Once the original expectation of privacy has been extinguished, the government is free to use the nonprivate information. The court went on to cite United States v. Miller in holding that the Fourth Amendment does not preclude the obtaining of information revealed “to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in a third party will not be betrayed.”¹⁹

Justice Stevens’ opinion then dissected the individual actions taken by the DEA when they removed the tube and plastic bags from the box and then performed a field test. The respondents did not have a privacy interest since the package remained unsealed and the employees had just examined the package. The employees simply invited the federal agents for the purpose of viewing the contents. This viewing of what a private party had made freely available to the agent for his inspection did not violate the Fourth Amendment. Removing the items did not allow the agent to learn anything new that had not been discovered in the private search, and therefore it was not a search pursuant to the Fourth Amendment. Due to the fact that it was open and unsealed, the court also held that it was a not a seizure pursuant to the Fourth Amendment.

The court also upheld the validity of the chemical test based on the fact that it did not compromise any legitimate interest in privacy; the court held that it was both a seizure and search. Because the federal agents did not infringe any constitutionally protected interest that had not already been infringed by the private action, there was no violation of the Fourth Amendment. Moreover, any infringement was deemed to be “de minimis and constitutionally reasonable.”²⁰ The Court of Appeals holding was overturned as a result.

Jacobsen had significant implications on Fourth Amendment searches and seizures with packages and letters. It also bolstered several concepts discussed in Miller. Jacobsen was important in that it maintained that a private party was not subject to the Fourth Amendment restrictions. The employees of the private freight company clearly were not government officials. The court went on to extend this idea by reasoning that once the contents of the package had become nonprivate, the government is free to search and the Fourth Amendment is not implicated.

However, the court did maintain that warrantless searches of an individual’s effects are presumptively unconstitutional. This is an important starting point when examining government investigations. This presumption strengthens the Fourth Amendment protections given to individuals and places the burden on the government to prove justification for a search conducted during an investigation.

United States v. Jones, 132 S.Ct. 945 (2012)

The most recent prominent case regarding Fourth Amendment issues involved the use of a global positioning system (GPS) tracking device on a vehicle. Antoine Jones was suspected of trafficking narcotics. After being investigated by the FBI, the government applied in the U.S. District Court for the District of Columbia for a warrant authorizing the use of an electronic tracking device on his vehicle. The warrant authorized a 10-day window, but the device was not installed until the eleventh day. Based off the extensive information discovered by the tracking device, the respondent was convicted for conspiracy to distribute and possession with intent to distribute cocaine. His motion to suppress the evidence was denied and he was ultimately convicted. The U.S. Court of Appeals reversed the conviction, and the Supreme Court granted certiorari.

The court held that this constituted an unlawful search under the Fourth Amendment. A critical factor for the court in their analysis was the fact that the government physically occupied private property for the purpose of obtaining information when they planted the tracking device on his vehicle. The word property is not included in the text of the Fourth Amendment; however, the court had no issue extending the scope in this instance. The government argued for the Katz standard, asserting that a person does not have a reasonable expectation of privacy when they drive on public roads, since the roads are visible to all. The court did not agree with this argument.

Instead, the court opined the present case should not be analyzed exclusively under the Katz formulation. Prior to that case, Fourth Amendment issues were decided based on common-law trespass to one’s property or tangible things, such as the Olmstead case. The decision in Katz did not involve an intrusion of property and later decisions departed from the property-based approach. As the court noted, “the reasonable expectation of privacy test added to, not substituted for, the common-law trespassory test”²¹ to ensure that the analysis would protect people and not just places. The court’s focus was on the fact that an individual’s property was physically occupied for the purpose of gathering information. Although not analyzed under Katz, it did not conflict or repudiate its holding.

Justice Sotomayor’s concurring opinion urged the court to adopt a strict Katz analysis. She asserted that this would be particularly important in an era where surveillance could be accomplished without physical intrusion. Another concurring opinion was written in which Justice Alito agreed with the outcome, but disagreed with framing the issue in terms of trespass to property. The court concluded that it was an unlawful search and seizure, and the judgment of the Court of Appeals was upheld.

Jones is one of the most recent cases concerning Fourth Amendment and violations of the reasonable expectation of privacy. The court made a departure from its earlier way of analysis in Fourth Amendment cases. In Olmstead, the court was reluctant to expand the scope of the Fourth Amendment by reasoning that telephone conversations were not encompassed under the protections of the Fourth Amendment. In Miller, the court would not expand the safeguards of the Fourth Amendment to bank records, finding that these were expected business records of a service provider. Jones took the opposite approach. Jones affirmed the idea that a vehicle, although not specifically enumerated in the Fourth Amendment, still would be afforded protection.

The case also calls into question the future direction of Fourth Amendment litigation. The majority, while not repudiating Katz, refused to follow the two-prong approach originally adopted. While noting the transition in Fourth Amendment jurisprudence from common-law trespassory to the reasonable expectation of privacy, the court basically considered Katz a supplementary case to modern-day constitutional litigation. This was a point of contention with the other justices, particularly Justice Sotomayor, who believed treating the issue as a trespass of property in an age where physical intrusions occur less infrequently was illogical. Whether the courts will proceed under the Katz analysis in Fourth Amendment litigation in the future remains to be seen.

Summary of Cases

Table 11.1 provides a summary of the cases discussed in this chapter.