Double-Clicking on Fourth Amendment Protection: Encryption Creates a Reasonable Expectation of Privacy

Abstract

The sections of this article are divided to provide discrete reasons why encryption is, and should be, protected by law. At the outset, Section II gives a general overview of the encryption process and highlights the power encryption technology. It becomes apparent when understanding the encryption process that utilizing encryption is a considerably reliable way to protect electronic data. Section III offers a historic prospective on the uses of encryption. It demonstrates that the framers of the United States Constitution readily used encryption technology to protect their communications and afford themselves privacy. Section IV defines the evolution of the right to privacy. This section provides a foundation for why the Fourth Amendment's evolution is developing toward protecting encrypted data. Section V specifically responds to an article recently written by Professor Orin Kerr, who argues that encrypted data is not constitutionally protected. This section goes through three of the main cases that Professor Kerr cites and discusses why they do not support his proposition when applied to the current uses of encryption and electronic documents. Section V also reveals that the Court might already be on a path to giving encrypted documents privacy protection. Finally, Section VI will explain why the lock-and-key analogy is valid. It will show how the analogy allows easy translation from the Fourth Amendment protection that the Court has granted physically locked containers to digitally encrypted documents that give rise to a reasonable expectation of privacy.