An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants

By Helen Winters. Full Text.

In the “digital age,” perpetual changes in technology have brought increased opportunities for exchanges of personal data between individuals and third parties. Often, this information-sharing is a necessity to fully participate in modern society. Yet, investigative techniques such as reverse keyword search warrants have called into question the applicability of existing Fourth Amendment jurisprudence as applied to digital privacy. While societal expectations of personal privacy have evolved alongside technology, Fourth Amendment jurisprudence has not. The recent Carpenter decision signals a growing judicial concern for digital privacy, yet detrimentally cabins itself to extraordinarily specific circumstances, and effectively maintains the supremacy of the third-party doctrine. When applied to new investigative techniques like reverse keyword search warrants, the narrow defenses of Carpenter and the third-party doctrine together create a lapse in protection, leaving large swaths of digital data generated by emerging technologies vulnerable. This Note aims to demonstrate this gap in protection by comparing the data uncovered by reverse keyword search warrant techniques to the CSLI data sought in Carpenter, ultimately arguing for increased legislative action to protect against intrusions into digital privacy, thus closing the gap.