Topics: Privacy & Liberties, Security & Insecurity, Insights, Law, US Bill of Rights, Searches, Police. Privurity

Prof. Orin Kerr recently had an interesting posting on Virtual Analogies, Physical Searches, and the Fourth Amendment at the Volokh Conspiracy blog. He discusses a US court case, United States v. Andrus [pdf], and the implications of the way courts handle the "clash between virtual analogies and physical facts". I won't repeat the issues with the particular case here. I am more fascinated with the broader issues of the "clash".

Prof Kerr explains,

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Most users think of computer searches as occuring at the virtual level, because that's the user experience. But computer forensic software works at the physical level: it treats the hard drive as a physical device that contains millions of zeros and one, not as a virtual "box" of information accessed through an operating system. User profiles and most password protection operate only at a virtual level, so a government forensic analyst operating at a physical level wouldn't even notice the difference unless he was specifically looking for it.

Why does it matter? Well, it matters because the answer to the legal question seems to hinge on whether you apply the Fourth Amendment from a virtual perspective or a physical perspective.
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By the way, Prof. Kerr had explored some of these issues in a 2005 Harvard Law Review paper on Searches and Seizure in a Digital World [pdf].

I found Prof. Kerr's blog entry's closing questions quite notable in an era where courts and other institutions are dealing with science and technology:

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How do you measure the reasonableness of a belief when understandings of what computers are and how they work are so different among typical users and forensic analysts? Should the law follow the understandings of the experts who understand the technology or the general users who don't?
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Good questions! I keep picturing some of the Dilbert and User Friendly comic strips depiction of techies dealing with clueless people. Unfortunately, scientific & technological clueness in law and public policy might not be so funny.

J.D. Abolins