Hey You, Get Out of My Cloud Data!: A Property-Based Approach to Reverse Search Warrants

Currently, there exists a “Grand Canyon” of judicial disagreement between the Fourth and Fifth Circuits on whether reverse search warrants (1) are searches under the Fourth Amendment and (2) are constitutional. This issue, on which state supreme courts are also divided, is now before the U.S. Supreme Court and awaiting decision as a question of Fourth Amendment jurisprudence. This Note proposes a different way of bringing clarity to this judicial disagreement. Instead of falling back on the “reasonable expectation of privacy” approach, courts should follow a property-based approach when it comes to questions of user data stored on the servers of internet companies. The property conception would provide a different path to resolve the disagreement by concluding that users have property-like protections in the data that reverse search warrants target and that this data qualifies as a “paper” under the Fourth Amendment, and thus the government must get a warrant to obtain this data.