Today’s New York Times article outlining law enforcement officials’ attempts to expand their digital wiretapping authority, offers interesting insight into the law enforcement world of tomorrow. In the not too distant future, TV’s crime-process dramas may take on a very different feel. Gone will be the days of gun-toting detectives busting down doors, search warrant in hand. Instead, as our lives become increasingly digital, investigations will be conducted by keyboard-wielding lab techs submitting automated requests to service providers. Don’t be surprised if the next CSI spin-off is CSI: Inbox Inspectors Division.
But why does this shift matter? Simply put, in the cloud, there is no door for the police to kick in. While the law is clear in that your physical files and those computer files stored on your computer itself enjoy the protections of the fourth amendment, those stored in the cloud do not, and the standards of proof required differ dramatically.1
Consider this: you are the target of a criminal investigation and the police believe that six months ago you e-mailed an accomplice to discuss the crime. Depending on your e-mail settings and which service you use (e.g., if the “leave downloaded messages on server” option is checked), the police may need only offer “specific and articulable facts” that they suspect the e-mail is related to the crime.2 That same e-mail stored on your computer (e.g., if the setting is not checked), would require a search warrant and showing of probable cause, and thus would be afforded significantly greater protections under the law.3
However, the typical “if you don’t want it public, don’t put it on the internet” argument doesn’t apply here. While that may be true for photos and updates posted to social networking sites, as more and more of our lives (and commercial dealings) are pushed to the cloud, we’re loosing our abilities to have a digital private sphere.4
The good news is that it’s in service providers’ interest to instill confidence in the integrity of your data by disclosing when information is shared with authorities and by pushing for legal reform to better safeguard personal data stored in the cloud. The bad news, beyond more painfully tacky computer search scenes, is that before we know it, our perception of privacy may be forced to evolve.
Thunderstorms occur when divergent forces collide in clouds. It is becoming increasingly clear that cloud computing is in our extended forecast, but whether the imminent digital due process storm the cloud foreshadows will contain a silver privacy lining remains to be seen.
Photo credit: garyhayes
Compare Fed. R. Crim. P. 41(e)(2)(B) with 18 U.S.C.A. § 2703(d) (West). ↩
18 U.S.C.A. § 2703(d) (West). ↩
See generally Obtaining Electronic Evidence, Federal Law Enforcement Training Center (July 2003). ↩
Prior to GitHub, Ben was a member of the inaugural class of Presidential Innovation Fellows where he served as entrepreneur in residence reimagining the role of technology in brokering the relationship between citizens and government. Ben has also served as a Fellow in the Office of the US Chief Information Officer within the Executive Office of the President where he was instrumental in drafting the President’s Digital Strategy and Open Data Policy, on the SoftWare Automation and Technology (SWAT) Team, the White House’s first and only agile development team, and as a New Media Fellow, in the Federal Communications Commission’s Office of the Managing Director. His paper, Towards a More Agile Government was published in the Public Contract Law Journal, arguing that Federal IT Procurement should be more amenable to modern, agile development methods. More about the author →