New York University Public Law and Legal Theory Working Papers

Document Type



Maryland Law Review, Vol. 70, p. 101, 2011


The rapidly changing social role of the Internet and other digital media requires a rethinking of the scope of Fourth Amendment protection. The social role of the Internet and related technologies goes far beyond serving as a new means of communication, analogous to the telephone and postal mail. To preserve Fourth Amendment protections in the face of changing technology, courts must focus not only on the potential for increasing intrusion into time-honored private realms, as the Supreme Court did in Kyllo, but also on the privacy implications of technology-mediated social change that were recognized in Katz. First, courts should recognize that an aggressive form of third party doctrine suggesting that any exposure of private data to an intermediary destroys reasonable expectations of privacy is inconsistent with Fourth Amendment doctrine relating to shared social spaces. Second, courts should adopt an approach of technosocial continuity, acknowledging both the increasing intrusiveness that technology makes possible and the intertwined and changing social structure of the physical and digital worlds. Viewed from a technosocial perspective, much cloud computing is an extension of the home or office. Similarly, social networking platforms sometimes serve as technosocial extensions of the home, connecting people with their friends, families, and intimates and aggregating the varied pieces of private life in ways that mirror the home's valued social role. To maintain technosocial continuity with Fourth Amendment protection of traditional bastions of privacy, such as the home, courts should zoom out from a focus on translating the Fourth Amendment’s protections to cyberspace and see digitally-mediated social behavior for what it frequently is - an inextricable part of social and private life. To maintain a space for private life away from government scrutiny, the Fourth Amendment’s protections must reflect the technosocial reality of citizens' private lives.

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