Fourth Amendment In The Cloud

The Fourth Amendment in the United States Constitution reads:

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.

James Madison slipped up and failed to account for advancements in technology like computers and the Internet. Are digital files considered “papers and effects”? Is law enforcement copying files considered “searches and seizures”? If your files live on a server is that considered your “house”? Of course back in his day, this wasn’t even comprehensible. The amendment is a bit dated.

Electronic Communications Privacy Act (EPICA) was an effort in 1986 to clarify how such laws applied to electronic communications. It too is somewhat outdated and heavily focused on the transfer than the storage aspect, something the modern SaaS model has completely disrupted. It’s also been weakened and contradicted by court rulings and things like the Patriot Act.

This creates enough of a legal quagmire to concern a seemingly bizarre list of companies and organizations to form the Digital Due Process Coalition to revise and clarify these laws. For companies like Google and Microsoft it makes sense. Their business relies on making companies and individuals feel comfortable trusting them with personal data. They are also increasingly stuck in odd positions thanks to contradictory and untested laws.

The outcome of this will possibly be as long-lasting and as iconic as the fourth amendment itself. Given our culture, information, and way of life is becoming increasingly digital it will impact a large part of how we function and will function in years to come. For anyone working in IT, this will impact the way you do business.