Susan Brenner: "Privacy and the Cloud" - 1 views
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the 4th Amendment was developed at a time when the only privacy was spatial privacy; for something to be private, I had to keep it IN my home or office (and maybe in a locked chest), which both made it difficult for law enforcement officers to gain access to it and symbolically invoked my right to assume they wouldn’t gain access to it. (In other words, I could assume privacy.)
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our lives have already moved far beyond spatial privacy; I talked about the 4th Amendment’s application to the contents of emails and what we do online -- arguing that it should apply to both, but noting that courts so far do not tend to agree. I think cloud computing will take this analysis to the next level.
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My point is that even under current 4th Amendment law, I can make what I think are valid arguments as to why the 4th Amendment should apply to data stored in a cloud (as long as the appropriate conditions exist). I really think, though, that we shouldn’t be using cases that were decided thirty years ago or a hundred and thirty years ago to set the standard for 4th Amendment privacy in an era of advancing technology. As I argued in that law review article, I think we need to move beyond a purely spatial approach to privacy to approaches that encompass both spatial and non-spatial privacy.
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What about privacy in an era of cloud computing? If I store my data in a cloud, is the data in a "closed container" and therefore private under the 4th Amendment? Or is putting data in a cloud analogous to giving the numbers I dial on my phone to the phone company?