How the Patriot Act Stepped on the Fourth Amendment

¶ … Fourth Amendment Related to Computer Searches

The Fourth Amendment is supposed to protect individuals from undue searches and seizures. Yet how this Amendment affects the searching of electronic storage (computers, drives, etc.) is unclear, as it was composed long before the Digital Age came into being. Thus, there have been various Acts and amendments geared towards explaining how the Fourth Amendment should be applied in the case of digital property.

The Electronic Privacy Control Act (ECPA) was first made into law in 1986. It was meant to address how government agencies could use electronic devices and what they could legally tap into and/or confiscate. The ECPA consisted of the Wiretap Act, the Stored Communications Act and the Pen Register Act. The Stored Communications Act is what set the parameters for how agencies could search stored files and data collected by service providers. But as this was 1986 and the Internet Age had not yet kicked in, this Act somewhat prematurely addressed the issues that would soon be facing government agencies surrounding the searching of personal computer files.

In 2001, the ECPA received a major amendment in the form of the U.S.A. Patriot Act and then again in 2006 when the U.S.A. Patriot Reauthorization Act was passed. Then, again, in 2008, the FISA Amendments Act gave government agencies even more power to search electronic files and to essentially spy on the American public's electronic communications (Justice Information Sharing, 2013).

These various Acts and amendments were not meant to circumvent the Fourth Amendment: they were meant to provide "a fair balance between the privacy expectations of citizens and the legitimate needs of law enforcement" (Introduction to ECPA, 2015). However, because the Fourth Amendment had no frame of reference for computer and/or electronic storage searches, new laws had to be enacted in order to cater to today's agencies' needs, in terms of providing security, etc. Essentially, what the Fourth Amendment called "undue" searches and seizures was reinterpreted along the lines of what government agencies like the NSA and the FBI wanted to do in terms of surveillance of electronic data and Internet communications. Thus, the Fourth Amendment was broadened interpretively to allow the government to search and seize computers, hard drives, data storage devices, etc., all in the name of fighting crime/terrorism in the Digital Age.