Publication Date
10-2023
Graduation Year
2024
Journal
Cardozo Law Review
Abstract
This Note will advocate for the view that when presented with the issue, state and federal courts should establish that keyword search warrants are unconstitutional because they violate the Fourth Amendment. Keyword search warrants cannot meet the Fourth Amendment’s requirements of probable cause and particularity because the subjects of the search cannot be identified until after the search is completed. These warrants are unnecessary and have the potential of implicating millions of internet users who have no connection to a crime. This Note will contend that individuals have a reasonable expectation of privacy in their search history data, and that law enforcement officials violate the Fourth Amendment’s protection against unreasonable searches when they obtain such data without a traditional search warrant.
Part I of this Note will provide the history, jurisprudence, and other background information necessary to this issue. To begin, Section I.A will present an overview of the Fourth Amendment by describing its history and role in protecting individuals against unreasonable searches and seizures. Next, Section I.B will describe what action is required for courts to find that a Fourth Amendment search has occurred. Subsequently, Section I.C will examine the third-party doctrine to illustrate circumstances in which individuals do not have a reasonable expectation of privacy. Then, Section I.D will examine the Supreme Court’s decision in Ybarra v. Illinois to explain that probable cause must be particularized to every individual being searched. Section I.E will first examine the decision in Carpenter v. United States and then discuss the multi-factor test that emerged from the case. After, Section I.F will describe the various instances in which keyword search warrants have been used in the United States. Section I.G will discuss Google’s procedures after it is served with a keyword search warrant. This Note focuses on Google because it is the most popular search engine and has disclosed its procedures in responding to keyword search warrants. Part I will end with Section I.H, which will examine the decision in United States v. Chatrie to show that similar warrants have been found to violate the Fourth Amendment.
Part II of this Note will analyze keyword search warrants in the context of the Fourth Amendment to argue that keyword search warrants cannot be substituted for traditional search warrants. First, Section II.A will apply the Carpenter test to search history data to demonstrate that individuals have a reasonable expectation of privacy in their data, so a traditional search warrant is required to obtain such information. Following that, Section II.B will assert that keyword search warrants can never be based on probable cause, discussing the Austin serial bombings investigation to illustrate the point. Next, Section II.C will argue that keyword search warrants are unconstitutional because they do not meet the Fourth Amendment’s particularity requirement. Then, Section II.D will argue that courts should hold keyword search warrants to be unconstitutional as they have for geofence warrants. Finally, Section II.E will explain that keyword search warrants are unnecessary because law enforcement officials can use less intrusive traditional investigative techniques to find perpetrators.
Volume
45
First Page
271
Last Page
307
Publisher
Benjamin N. Cardozo School of Law
Keywords
Keyword Search Warrants, Fourth Amendment, Privacy, Technology
Disciplines
Fourth Amendment | Law | Legal Education | Science and Technology Law
Recommended Citation
Nicole Chan,
Wrong Search at the Wrong Time: Keyword Search Warrants and the Fourth Amendment,
45
Cardozo L. Rev.
271
(2023).
https://larc.cardozo.yu.edu/students-alums-articles/10
