Preservation Letters and Fourth Amendment Seizures: A Response to Professor Kerr

The Stored Communications Act (18 U.S.C. § 2701 et seq.) requires an Internet Service Provider to preserve the contents of a user account upon receiving a request from a government agency. The maximum period of preservation is 180 days. However, the government agency cannot get access to the copy, unless it presents proper legal process, usually a search warrant. During this time, the user has complete access to their account. In a recent article, Professor Orin Kerr has advanced a thesis that copying pursuant to the government’s preservation requests under the Stored Communications Act is a Fourth Amendment seizure. This Article disputes Professor Kerr’s argument. It does so on his terms, that digital copying is a meaningful interference with a possessory interest in property, but also advances a new theory of seizure in the digital world. This theory is premised on the idea that unlike physical seizures, which interfere with a possessor’s access to the tangible objects seized, digital copying does not. The real concern with digital copying is the privacy of the data. Although privacy is usually the concern of the law of searches, this Article advances the idea that when we analyze the concept of seizure with respect to the copying of digital evidence, it is the owner’s privacy interest in the data, and not their access to it, that we need to address. Viewed from a privacy perspective, preservation requests are not seizures