The Olmsteadian Seizure Clause: The Fourth Amendment and the Seizure of Intangible Property

Privacy and Security

Article Snapshot


Paul Ohm


Stanford Technology Law Review, Jan. 28, 2008


This paper looks at the ground rules for seizing electronic evidence.

Policy Relevance

New legal rules are needed to protect privacy of data and prevent abuses where the police make copies of all data and search it later.

Main Points

  • The Supreme Court has ruled that the police must get a warrant to carry out a search when people have a reasonable expectation of privacy in an area, not just when their property is invaded.

    • The Supreme Court held that we expect that our phone calls must be private, so police must get a warrant to use a wiretap.

  • People get less protection from abuse of the police’s seizure process, because usually only physical property is protected. The police can copy data without “seizing” it.

    • Older cases hold that government seized “data” just by copying it. But the Supreme Court upset this protection in a case allowing the testing of cocaine.

  • Because more and more data is stored on electronic networks, allowing the government to copy data without privacy safeguards invites large-scale abuse.

  • Courts should adopt a rule that constitutional safeguards against abusive seizures are triggered when the state takes control of data.

    • Courts should recognize that meaningful privacy protection today should include a right to delete one’s messages.
    • Photographing evidence at a scene would be allowed, because it is reasonable and necessary.

  • Technology means that there is a wider gap now between property and privacy than when the Fourth Amendment was written. The law must adapt to protect both.

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