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Monday, October 17, 2011

Semitsu on Constitutional Protections Against Unreasonable Searches and Seizures on Social Networks

Semitsu, Junichi - USD LawJunichi P. Semitsu (University of San Diego School of Law) has posted Arresting Development: Facebook Searches and the Information Super Highway Patrol (Arkansas Law Review, Forthcoming) on SSRN. Here is the abstract:

Does the right of the police to search an arrestee’s person and vehicle include the right to rifle through and clone all the content on his smart phone’s Facebook account? As recent court decisions have largely given police officers carte blanche to search a person’s cellular device, I raise this question because of the additional privacy and speech concerns triggered when such searches extend to social networking sites.

Facebook may be the furthest thing from the minds of those placed under arrest — especially those booked for minor traffic offenses only punishable by fines. But for those handcuffed near their smart phone, the social networking site may seismically shift the balance between their privacy and the police. As the most frequented stop today on the information super highway, Facebook has both mushroomed civilian traffic and escalated the highway patrol policing it away from public view. However, the true genesis of any seismic shift lies with the Court’s outdated Fourth Amendment jurisprudence and Congress’s failure to update federal privacy laws to consider methods of modern communication tools.

I begin this Article by conducting an empirical analysis of the ways that lower courts have allowed or barred a government search of an arrestee’s cellular phone (or other mobile electronic device). I demonstrate that these decisions suggest little hope of suppressing a post-arrest Facebook search, despite running afoul of principles underlying any exceptions to Fourth Amendment search rules. I then analyze the federal privacy laws that may be implicated by such searches. I determine that even if a search triggers federal privacy laws or avoids the myriad holes in the Swiss cheese of Fourth Amendment jurisprudence, the digital architecture of social networking punctures any hope that such searches can be challenged under existing privacy grounds.

This Article thus concludes that a First Amendment theory of privacy is necessary to offset the ramifications that boundless social networking searches have on free expression. Such blanket surveillance — along with the digital technology to perfectly record and copy it — has the potential to chill so much speech that the First Amendment may be the more meaningful and faithful lens through which to consider such searches. After all, in a matter of minutes, a police duplication of an arrestee’s Facebook account could cast a net covering years of personal communications by the arrestee — as well as the speech of hundreds of others. The implications are just as staggering as the difficulties facing an arrestee who wishes to challenge these practices under existing laws. As such, only the overbreadth doctrine provides the proper remedy to fully safeguard online First Amendment activities from these warrantless government fishing expeditions.

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