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The Fourth Amendment and Digital Privacy

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The Fourth Constitutional Amendment in the United States came as a result of judge Alex Kozinski’s speech, which posed the necessity to review the digital privacy in the 21st Century. He gave this speech in an annual B. Kenneth Simon lecture on the constitution day at Cato’s day conference which was held on the 15th of September, 2011. The judge spoke about changing cultural expectations of privacy in regard to the newly emerged technologies and new constitutional conflicts that arose. He further stated how the Fourth amendment has changed over time in reflection of changing cultural expectations in the digital world (Hall, 2000).

Digital privacy in this context refers to the protection of information belonging to private citizens who tend to use digital mediums. It tries to explore the possibility of technological advance protection of the digital information from falling into the hands of an unintended third party. This has resulted in a massive outmoded debate having resilience to why the privacy issues of concerns are not solving the current public policies questions being faced by the citizens. In the film of Alex Kozinski from communistic Romania, his case had led to an appeal which emerged to be the 9th Circuit in the court. This was followed by an interview of the 9th Circuit to deliver its conclusions due to the rise of the ongoing saga that was at the panel in the United States vs. Cotterman’s case. Cotterman’s plea was rejected due to the evidence of legality permitting the search. This led to the 9th Circuit granting en banc a hearing to pledge its stands. Based on the digital privacy rules, the coverage of this ruling as accessed in this case agreed to the majority will of rejecting Cotterman’s challenge to allow the legality of search (Hall, 2000). 

What Constitutes a Digital Footprint/Content?

Digital content constitutes of various computing systems and programs which are built in such a way that they can generate a wealth vast of information about how the computer content will be used. The use of more programs in the digital data content is referred to as Metadata. This tends to become broader to a more comprehensive content. It means that the windows operating system generates a great deal of important metadata on how the computer has been used in the past. According to the Fourth Amendment, the digital privacy content should be protected from the unintended access (Orin, 2005).

What if any Are Our Rights to Privacy for Digital Content?

If the privacy rights belong to an individual, generating a bit stream copy, there cannot be a seizure or a search method as per the current laws. This means that the seizure in this part is ought to be rejected in such approach and should be able to regulate imaging both a search and a seizure basing on the inferences with the owner’s property rights. In such a case the court is ought to allow all similar rules that regulate the searches of originality to the searches of copies. Owning privacy digital rights will entitle one with the sole rights to either publish or sell his copyright (Orin, 2005).

What Steps Has the Government Taken to Search Digital Content?

The government has faced a challenge of addressing the digital privacy concern issues, following the dissenting opinions, which said that the majority of judges were crafting the unworkable rule that could in turn jeopardize the state border security. Legitimate security concerns have been ruled to have failed to fulfill the digital privacy concerns. This means that their unfettered search and seizures of any private information has been put to question. Brennan Center for Justice has argued that there is a possibility that the National Association in concern with the Criminal Defense Lawyers and Electronic Frontier Foundation capability to prform their searches without suspicion with their devices poses a threat to the Fourth Amendment bill which can become irrelevant. This is because it has been applied by the United States police for the last four decades at their modest standards.

This means that the government has been left out with limited scopes of checking the digital private information. It has been forced to employ more intrusive techniques, which involve copying data using special software. This special software will allow the government to crack the passwords and recover deleted files, which is the only hope for the Fourth Amendment privacy free zone. It is due to the fact that majority of the custom agents globally are capable of investigating without raising any suspicion (Price, 2013). 

Has the Supreme Court Addressed This Issue?

The Supreme Court of the United States in the year of 2012 tried to address the need for digital privacy. Its decision was ruled in the favor of the majority of the court. The Supreme Court met a conclusion that the GPS tracking device is ought to be installed to track the individuals who tend to violate the Fourth Amendment. The argument occurred when some judges tried to imply that since policemen were free to follow a person at free will, the GPS system should also be made legal. This became a misunderstanding as policemen were free to follow people on public streets. Later the judge Sonia Sotomayor cautioned that the use of the GPS monitoring device will have long term negative effects, as opposed to normal monitoring (Price, 2013).

Would Fruit of the Poisonous Tree Apply?

In Sotomayor’s argument, the GPS device if implemented to monitor different people could possibly generate a comprehensive persons’ recording of all their public movements. That means all their movements would eventually reflect on their lives. Also it would reveal all their personal information which is not the aim of monitoring. This is because the GPS monitoring long term effects would reveal one’s family, political, religious, profession and sexual associations. This could be misused for personal interest, which forced the Fourth Amendment to act. The 9th Circuit embraced Sotomayor’s logic view relating that full brown search of any electronic device was similar or equal to the computer strip search. This was attributable to the dairy line for a criminal activity (Price, 2013).

What Steps Can the Defense or the Prosecution Take to Use or Exclude the Digital Content from Trial?

Basing on the defense to exclude the digital content from trial, it will involve the constitutional conflict, as the United State does not provide an express right to digital privacy. The United States Constitution as from its Fourth Amendment had the concerns to James Madison, where an individual is ought to be protected from the unreasonable searches. One can challenge the constitution as it does not protect the privacy of individual digital rights. Quoting from the past Supreme Court cases as early as in 1923, Liberty has been enacted to guarantee the Fourteenth Amendment which sheds light on the right of privacy only in bringing up a child, procreation, marriage and terminations of medical treatments. This has ignored the digital privacy which can be considered as a point of reference (Exploring Constitutional Conflicts, 2012).

The Fourth Amendment can also be used for the privacy of individuals and possessions. In the efforts to withdraw this trial from going through, it could invalidate the accusations laid against one when using digital private data was obtained without one’s consent. This is because of the right of the individuals’ houses, papers, and their effects against unsecured searches and seizures which are ought not to be violated. It also entails that no warrant issue should be given upon a probable cause which is either supported by the oath or affirmation (Exploring Constitutional Conflicts, 2012). 

What Constitutes a Search with Regard to Digital Content?

The Fourth Amendment has led to privacy impact assessment. This has aimed to justify under which conditions the search can be validated.

It was proven by one of the judges that all the forensic examinations of laptops hard disk without any suspicion really violated the Fourth Amendment right of freedom. Also the cursory search without suspicion is a criminal activity but it’s still legal. This also includes manual browsing of documents in a desktop. It limits the appellate courts to use more intrusive techniques which includes copying data using special software’ to crack passwords or for data recovery of files. This has led to a relief that the Fourth Amendment free zone though facing problems from the custom agents who retain wide latitude to investigate everything without anybody’s suspicion (Price, 2013).

Privacy concerns have called for the suspicionless searches to ensure the safety of one’s precise documents. This has created the Department of Homeland Security (DHS) for the free rein to rifle using electronic files of physicians, clergy, executives, lawyers and academic reporters to keep their confidential sources and their privileged held information. This would allow them to keep their confidential information meaning that a person’s private life should not be hijacked (Price, 2013). 

What Constitutes A Seizure With Regard To Digital Content?

In the Fourth Amendment incorporated searches and seizure measures regulate other people from entering homes or seizing physical evidence.  It prohibits unreasonable search or seizure and now is being called to regulate different processes in retrieving the digital evidence from electronic storage devices.  This Amendment tries to consider in which conditions the government investigators can legally retrieve any evidence from one’s computer (Kerr, 2005).

Seizure is constituted in the current laws when mapping the doctrine of search and seizures onto the characteristics of physical property. The other physical barriers tend to miss in the digital environment, thus, raising questions on how to regulate the access to information in its absence. Also seizures based on the Fourth Amendment, as enacted during the colonial era experience enforced by the general warrants in the assistance of wrists. This allowed the officials to enter the private homes to conduct dragnet searches in case of crime evidence. Judy Betty Fletcher’s opinion approved the seizure offering a suggestion on how the government can be able to avoid violation of the Fourth Amendment rights in cases, which involved commingled documents. This makes the broad seizures occur only when they are justified by practical concerns (Kerr, 2005).


Can You be Criminally Charged for Downloading? What Is an Illegal Download? Can You Plead the Fifth with Regard to Digital Content/Speech?

Some rationales have been put in place to copying files of any computer or holding unpublished opinions. In a case study of Gorshkov in the United States, FBI agents accessed a suspect account on the Internet and downloaded his files without obtaining the warrant. This case was taken to court, where the district judge Hicks concluded that it was not a seizure because FBI did not interfere with the defendant’s data, nor did it have any possessory interest in the data. This is because it remained intact. This implies that one can be charged when in possession of downloaded material that is not published, if he has an intention to use it for modifications or other personal interests (Kerr, 2005).  

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