Volokh Conspiracy: On Orin Kerr and the Constitution across borders

As faithful readers of the VC know, Orin Kerr and I occasionally disagreeabout questions of Internet law, an area where our interests overlap considerably. But Orins recently-published paper on The Fourth Amendment and the Global Internet is a must-read - authoritative and comprehensive, a terrific resource for anyone thinking seriously aboutwhat Orin calls the clash between the territorial Fourth Amendment and the global Internet application of 4th Amednment doctrine to Internet communications, and the many difficulties of adapt[ing] to the reality of a global network in which suspects, victims, and evidence might be located anywhere. Legal scholarship at its best.

He covers a lot of ground, starting with the Supreme Courts decision inUnited States v. Verdugo-Urquidez, which held that a person must have sufficient voluntary connections to the United States either lawful presence in the United States at the time of the search or some substantial connection such as citizenship or lawful residency to enjoy the protection of the Fourth Amendmentat all. That is, some people in the world have FourthAmendment rights, and many others do not, which leads him to ask and analyze three questions: how should online contacts with the United States factor into whether aperson has Fourth Amendment rights? Second, how does the Fourth Amendmentapply when the government does not know if a target has sufficient contactsto establish Fourth Amendment rights? And third, how does the FourthAmendment apply when the government monitors communications betweenthose who lack Fourth Amendment rights and others who have those rights?

Next, he asks a series of questions assuming that the subject of monitoringhasFourth Amendment rights: how does the subjects location (or the location of the data) affect the analysis of whether the search was unreasonable within the meaning of the Fourth Amendment?

Its a rich mine of interesting and important law. But for me, the really interesting question is the one heexpressly) sets aside: is the Verdugo-Urquidez rule itself, and the strict territorial demarcations on which it is based, the right one for the 21st century Constitution? Orin takes the Verdugo rule as a given; as he notes, he accepts the basic principles of existing doctrine and considers how courts should apply those principles in light of the unprecedented globalism of todays Internet. Fair enough. But why dont we extend Fourth Amendment rights to foreigners outside of our borders? The Fourth Amendment, of course, only prohibits unreasonable searches and seizures why should the government be empowered to behave unreasonably towards anyone, with or without a citizenship or residency or locational connection to the United States? Why should the Constitution not prohibit US agents from searching the contents of Angela Merkels e-mail inbox?

Its a question that comes up frequently in Internet law, in connection with other constitutional rights. it was, for instance, very much central to the debates about SOPA (Stop Online Piracy Act) a few years ago. The animating principle behind SOPA which targeted foreign infringing websites for elimination through the Domain Name System was one that was premised on the notion that the operators of foreign infringing websites have no due process rights that we have to recognize (because, like the 4th Amendment, the 5th Amendment due process guarantees have a territorial component), so we can summarily remove their websites from the global Internet without compunction, in a manner that would be unconstitutional if applied to US citizens. It struck me as a flawed view of the world then, and it does again in reading Orins article.

David G. Post is a Sr. Fellow at the New America Foundation's Open Technology Institute. He taught intellectual property/Internet law at Georgetown and Temple Universities, and is the author of In Search of Jefferson's Moose: Notes on the State of Cyberspace. Views expressed are his own and should not be attributed to his affiliated institutions.

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Volokh Conspiracy: On Orin Kerr and the Constitution across borders