Volokh conspiracy lawyer scrgruppen
Yesterday, the Colorado Supreme Court issued the first state Supreme Court case on reverse keyword search law for Google terms: People v. Seymour. Here’s the problem: If the government has reason to believe that someone entered a particular Google search related to a crime, can it get a warrant to force Google to hand over the IP addresses or account that entered that search? If so, how broad was the search? Is a warrant needed at all?
Seymour Involves arson at a specific address. Since there were no clues about who started the fire, investigators believed whoever committed the crime may have Googled the address of the arson in the previous weeks. (The idea is, I suppose, that between getting directions and getting Google images of what it looks like and the surrounding area, it’s a natural way to recreate the place as part of an arson plan.) Investigators obtained a warrant covering the 15 days leading up to the arson, and Google responded that 8 IP addresses had been Googled for that address. Five of the eight addresses were local, and investigators excluded two of them. Then they got another warrant to get the records of the other three. One of the three was defendant Seymour.
Among the questions raised: Does Seymour have Fourth Amendment rights in Google’s records for his search terms? Someone on their computer, most likely him, Googled the title; Google had the search term sent to it. Does informing the government that a term was searched from his IP address violate his Fourth Amendment rights?
The Colorado Supreme Court has answered this question in a very novel way. First, it held that while it was unlikely to be a Fourth Amendment “search” to collect that information — the user sends the data to Google, after all, and so Google’s receipt and storage of it is covered by the third-party doctrine — it is a search under the broader Colorado Constitution. I don’t have any particular view on the Colorado Constitution, so this part of the opinion isn’t that important.
But then the court did something I’ve never seen before: It ruled that copies of data held by Google were “seizable” under the Fourth Amendment even though access to them was not a search. The court did this in two steps. First, it ruled that a Google user has a possessory interest in the search terms held by Google sufficient to obtain protection from seizure under the Fourth Amendment:
Under both the Fourth Amendment and the Colorado Constitution, taking occurs when the government meaningfully interferes with an individual’s possessory interests in property. Hoffman v. People, 780 P.2d 471, 473 (Colo. 1989); Jacobsen Agreement, 466 U.S. at 113. Many courts have recognized, albeit in different contexts, that individuals can have possessory interests in intangible or digital property. For example, Ruckelshaus v. Monsanto Corporation, 467 U.S. 986, 1003 (1984) (holding that, at least for purposes of the Takeover Clause, individuals have property rights in intangible property, such as trade secrets); Integrated Direct Mktg., LLC v. May, 495 S.W.3d 73, 76 (Ark. 2016) (affirming that electronic data can be transferred if the person impedes the owner’s property rights). In fact, Google’s licensing agreement clearly states that it does not own its users’ content. Instead, users own their own Google content, which, according to one Google policy specialist, includes their search histories.
It then ruled that copying the data amounted to a “forfeiture” of it:
“One of the key rights associated with property is the right to exclude others, and a person who lawfully owns, possesses or controls property will in all likelihood have a legitimate expectation of privacy under this right to exclude.” Rakas, 439 U.S. at 143 n.12 (citation omitted). Therefore, while law enforcement can copy digital data without affecting the owner’s access to that data, it is the process of copying that is meaningfully inconsistent with the owner’s property interest because it violates the individual’s rights to exclude and control the dissemination and use of that digital data. See Randolph S. Sergeant, Fourth Amendment Model Computer Networks and Data Privacy, 81 Va. L.Rev. 1181, 1186 (1995); Oren S. Kerr, Fourth Amendment Computer Data Seizure, 119 Yale LJ 700, 710–14 (2010) (arguing that digital property seizure occurs when a government copies data because it copies digital property rather than controls the physical devices that preserve it for use as evidence in the future and thus purposefully conflict with the possessory interest of exclusive control)
I don’t have a problem with the second part of that, as you might imagine: I’ve long argued, including in the aforementioned article, that copying data protected by the Fourth Amendment is appropriation.
But the first part of this assertion strikes me as incredibly new and far-reaching, as it concerns a very important question about when Copying is a bout. I have always treated the power of control as parallel to the power of research. Under this approach, copying data amounts to an epileptic seizure Only if accessing it is a search. As I put it Fourth Amendment to Confiscation of Computer Datait’s the copying of “data protected by the Fourth Amendment” that constitutes forfeiture — not just any copying.
It seems to me that unless you adopt this view, you will end up silently abolishing—or at least invalidating—the Fourth Amendment’s law on what is research in the first place. The problem is that the process of revealing information always requires copying it first. If you say that copying information is a seizure, even when disclosing it is not a search, you will end up asking for a warrant to get the data even though getting it does not require a warrant. Just the occasional need to copy unprotected data to obtain information ends up requiring a court order. I don’t think this makes sense.
In fact, if you adopt this view, you’ll end up establishing a new set of principles regarding when copying data amounts to an epileptic seizure. If you are no longer linked to the data protected by the research rules, what could generate enough interest in the Fourth Amendment?
The Colorado Supreme Court doesn’t offer much in the way of an answer. First, she points out that some courts have said you can own data:
Many courts have recognized, albeit in different contexts, that individuals can have possessory interests in intangible or digital property.
Certainly, in the abstract, this is true. You can have an ownership right in the data. But why does that mean that Google search terms are owned, when you have given up ownership by submitting the query to Google? The cases cited by the court shed no light on this:
For example, Ruckelshaus v. Monsanto Corporation, 467 U.S. 986, 1003 (1984) (holding that, at least for purposes of the Takeover Clause, individuals have property rights in intangible property, such as trade secrets); Integrated Direct Mktg., LLC v. May, 495 S.W.3d 73, 76 (Ark. 2016) (affirming that electronic data can be transferred if the person impedes the owner’s property rights).
How does this relate to why you have a property right in the records you turn over to Google? The final part of the analysis adds:
In fact, Google’s licensing agreement clearly states that it does not own its users’ content. Instead, users own their own Google content, which, according to one Google policy specialist, includes their search histories.
I suppose this is an improvement, because at least it relates to Google records specifically, and not as data in the abstract sense. But why is the license agreement or terms of service important? As I claim hereThese Terms of Service do not affect your Fourth Amendment rights. Why would a licensing agreement magically create a property right in the data, such that copying the data would amount to a Fourth Amendment forfeiture requiring a court order?
If the Colorado Supreme Court’s approach is correct, I believe there is a super easy way for an Internet company to impose a global warranty requirement on any effort to obtain any data from the company. Simply enter this line in the Terms of Service:
By using this service, you obtain ownership rights in all data held by the company.
By adding this line, would any effort on the part of the government to obtain any record – even just a subscriber’s identity, or a list of someone else’s IP addresses – amount to a seizure of the data it owns because the data would need to be copied as it is transferred? If not, I’m not sure why. But it seems to me that this cannot be true.
There’s a lot in there Seymour Interesting opinion, but seizure detention strikes me as really far-reaching. I realize that many of our readers are Fourth Amendment supporters, and will cheer any ruling that adds new types of protections. But it seems to me that the court’s analysis of confiscations leaves much to be desired.
