THE FOURTH AMENDMENT RIGHT TO DELETE

Paul Ohm∗

Replying to Orin S. Kerr, Searches and Seizures in a Digital World, 119

HARV. L. REV. 531 (2005).

For years the police have entered homes and offices, hauled away
filing cabinets full of records, and searched them back at the police
station for evidence. In Fourth Amendment terms, these actions are
entry, seizure, and search, respectively, and usually require the police
to obtain a warrant. Modern-day police can avoid some of these
messy steps with the help of technology: They have tools that duplicate
stored records and collect evidence of behavior, all from a distance and
without the need for physical entry. These tools generate huge
amounts of data that may be searched immediately or stored indefi-
nitely for later analysis. Meanwhile, it is unclear whether the Fourth
Amendment’s restrictions apply to these technologies: Are the acts of
duplication and collection themselves seizure? Before the data are
analyzed, has a search occurred?
Today, tools can detect heat released from buildings,1 recreate im-
ages displayed on distant computer monitors,2 determine what is typed
on a keyboard by listening to the distinct sounds of the keypresses,3
and eavesdrop on WiFi Internet communications traveling through the
air. Handheld GPS units can monitor and store our movements
around town,4 and web browsers keep detailed records of the websites
we have visited.5 Tomorrow will surely bring new tools that are more
invasive,6 easier to use, and able to work from greater distances.

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∗ Associate Professor, University of Colorado School of Law. Thanks to Pierre Schlag and
Phil Weiser for their helpful comments.
1 See Kyllo v. United States, 533 U.S. 27 (2001).
2 Allegedly, a technology called TEMPEST can capture and decode the radio emanations
leaving a computer monitor from afar in order to recreate the images displayed. See Christopher
J. Seline, Eavesdropping on the Compromising Emanations of Electronic Equipment: The Laws of
England and the United States, 23 CASE W. RES. J. INT’L L. 359, 361–62 (1991).
3 See Elizabeth Woyke, Is Someone Listening to Your Typing?, BUS. WK., Oct. 3, 2005, at 18.
4 See United States v. Bennett, 363 F.3d 947, 952 (9th Cir. 2004) (describing use of a seized
GPS unit’s “backtrack” feature to demonstrate that defendant’s boat had traveled from Mexico).
5 See Orin S. Kerr, Searches and Seizures in a Digital World, 119 HARV. L. REV. 531, 542
(2005).
6 In one sense, these technologies are less invasive: you have no idea you are being watched.
Having your keystrokes decoded is much less disruptive than having your living room turned up-
side down. Thanks to Pierre Schlag for this point.

10
2005] RIGHT TO DELETE 11

Fourth Amendment cases are surprisingly difficult to apply to tools

used in a surveillance two-step: collect the data now, analyze the data
later (sometimes, much later). Prior to data analysis, has a search oc-
curred? In Kyllo v. United States,7 the Court held thermal imaging of
a home to be a search.8 But what would have been the result if the
police had stored the information without looking at it? Similarly,
what if the police lawfully seize a suspect’s GPS device and copy the
device’s internal memory without viewing the record of past move-
ments? Have searches yet occurred in these situations?
Professor Kerr’s description of the forensic analysis of computers9
provides a straightforward fact pattern with which to examine these
questions. The forensic analysis of a computer almost always begins
with the creation of a bit-by-bit, exact copy — called a “mirror image”
or an “image” — which preserves all of the data found on the com-
puter’s hard drive. In his article, Professor Kerr argues that unless
and until data from the image are exposed, no search has occurred.10
He worries that during the time after the image is made and before it
is analyzed, the Fourth Amendment may not apply since the owner of
the original drive has not been deprived of a possessory interest under
his reading of Arizona v. Hicks.11
Although he decries this “creepy,” “Orwellian” result,12 if anything,
Professor Kerr underestimates (or undersells) the threat to privacy of
constitutionally unregulated imaging. At the same time, his attempt to
distinguish Hicks is a bit unconvincing and arguably unnecessary. In
Hicks, the Supreme Court held that the police did not seize the serial
number inscribed on the bottom of stereo equipment by copying it
down, since the act of copying did not interfere with the owner’s pos-
sessory interest in the serial number or equipment.13 Hicks relies on
the standard definition of seizure — meaningful interference with a
possessory interest — a definition rarely satisfied when the police grab
digital evidence.
But there is another sense in which courts have construed seizure,
embodying a previously unidentified Fourth Amendment interest: the
right to delete. This right can be found in the Constitution once one
looks beyond physical-property-based notions of seizure, which fit so
poorly in the digital world, in favor of an approach that asks: “Can a
digital copy cause the same negative effects as physical dispossession?”

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7 533 U.S. 27 (2001).
8 See id. at 27.
9 Kerr, supra note 5.
10 Id. at 550.
11 480 U.S. 321, 324 (1987).
12 Kerr, supra note 5, at 559.
13 Hicks, 480 U.S. at 324.
12 HARVARD LAW REVIEW FORUM [Vol. 119:10

The answer is yes; when an owner loses control of a copy of her data,
she loses the ability to dispose of or alter that data, which I contend
causes a form of seizure. This is analogous to the property right to de-
stroy, which is tied to the rights of dominion and control. The Fourth
Amendment prohibition on unreasonable seizure should protect these
rights and provide a constitutional right to delete.
The right to delete explains why imaging is seizure without requir-
ing Hicks to be overruled or otherwise conflicting with existing juris-
prudence.14 It will also help determine the Fourth Amendment status
of the ongoing data collection of heat emanations, keypresses, monitor
images, WiFi communications, GPS tracks, web browsing records, and
new technologies yet to be invented. Ultimately, a physical-property-
based reading of Fourth Amendment seizure fails to properly translate
the Amendment’s protections to intangible, digital property.

I. THE DANGEROUS CONSEQUENCES OF UNLIMITED

GOVERNMENT IMAGING

Perhaps Professor Kerr assumes the risk of unfettered government

imaging is obvious, but he underplays the downside. He seems molli-
fied by the fact that even if a hard drive’s data are not seized when
imaged, any subsequent look at the data on the image will constitute a
search and usually require a warrant. A search may not have oc-
curred, however, in one particularly critical and timely situation: data
mining.
Data mining describes a broad set of techniques used to find pat-
terns in large collections of data.15 Some consider it to be an impor-
tant tool for detecting and preventing acts of domestic terrorism.16 If
hard drive imaging is not a search or seizure, “the government could
freely generate copies of our hard drives and indefinitely retain them
in government storage.”17 Agents could fill many government ware-
houses with the innocent and incriminating data of tens of thousands
of computers once thought to hold evidence of a crime. If agents want
to mine this data without a warrant, a Fourth Amendment search may
not have occurred for two reasons.
First, if a search does not occur until data is exposed to investiga-
tors, as Professor Kerr contends, the data mining system could be con-

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14 In this essay, I am attempting to look at Fourth Amendment seizure and new technology in
a way that least disturbs existing case law. This is not an attempt to overhaul the theoretical un-
derpinnings of search and seizure in light of new technology.
15 See generally Lee Tien, Privacy, Technology, and Data Mining, 30 OHIO N.U. L. REV. 389
(2004).
16 See id. at 392 n.10.
17 Kerr, supra note 5, at 559.
2005] RIGHT TO DELETE 13

figured to report the existence of “hits” without revealing the results.

An analyst could, for example, feed the newly discovered e-mail ad-
dress of a known terrorist into the data mining program and ask — in
a strictly yes/no sense — whether there are patterns of correspondence
involving that address anywhere in the database.18 Armed with a
positive result, investigators could then ask a magistrate for a warrant
to expose only information pertaining to the hit. Second, the expected
users of the data store — national security analysts and others charged
with preventing domestic terrorism — are less likely to be deterred by
the threat of suppression because their focus is on ex ante prevention
instead of on ex post prosecution.
If imaging is neither search nor seizure, law enforcement agents
would have the incentive to image every hard drive they could find.
Whether or not a drive was found to contain evidence, the image could
be loaded into the data store. The government could end up indefi-
nitely possessing the private correspondence (e-mail), reading habits
(web traffic), lists of associates (instant messenger buddy lists), most
private thoughts (diaries), and financial information (Quicken data-
bases) of thousands (or more) of people.

II. IMAGING AS FOURTH AMENDMENT SEIZURE:

THE RIGHT TO DELETE
These risks diminish greatly, however, if courts rule that hard drive
imaging is a Fourth Amendment seizure.19 They can reach this con-
clusion, I contend, without reversing prior rulings. Seizure is tradi-
tionally defined as that which “meaningfully interfere[s]” with a “pos-
sessory interest.”20 In contrast, search is defined as the government’s
intrusion into a person’s reasonable expectation of privacy.21 In rough
terms, search is about privacy rights, and seizure is about property
rights.22 However, in some contexts, seizure has an extra-property
sense and describes invasions of privacy, most notably in the bugging
and wiretap cases. Nobody is dispossessed of their words or voice
when they are illegally recorded, yet courts have described wiretapping
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18 This assumes that the yes/no test itself is not a Fourth Amendment search under the expo-
sure test.
19 For one thing, owners of seized data can bring a motion under FED. R. CRIM. P. 41(g) to
return the property.
20 Arizona v. Hicks, 480 U.S. 321, 324 (1987) (quoting Maryland v. Macon, 472 U.S. 463, 469
(1985)).
21 See Kyllo v. United States, 533 U.S. 27, 33 (2001) (citing Katz v. United States, 389 U.S. 347,
361 (1967) (Harlan, J., concurring)).
22 See, e.g., Texas v. Brown, 460 U.S. 730, 747–48 (1983) (Stevens, J., concurring) (“The
Amendment protects two different interests of the citizen — the interest in retaining possession of
property and the interest in maintaining personal privacy. A seizure threatens the former, a
search the latter.”).
14 HARVARD LAW REVIEW FORUM [Vol. 119:10

as both a search and a seizure.23 Perhaps the wiretap courts are being
sloppy, describing what is only a search as a seizure. But, more com-
pellingly, perhaps a seizure is not limited to physical dispossession. As
Professor Kerr points out, intangible computer data has a way of ex-
posing fissures in some of our bedrock understandings of the Fourth
Amendment.24
To determine whether the constitutional limit on unreasonable sei-
zure protects anything other than physical possessory interests, it helps
to ask the question, why is dispossession important? Cases like Hicks
view dispossession as a simple matter of rivalry: if you have my locked
box, I can’t have it too. But in the age of nonrivalrous, perfect digital
copying, this view of dispossession seems tautological and unhelpful.
The approach I suggest is to ask whether nonrivalrous copying can
produce similar negative effects to rivalrous dispossession. One nega-
tive effect of physical dispossession is it keeps the owner from altering,
destroying or otherwise changing the state of his property. If you take
my box full of letters, I am dispossessed of them, which harms me be-
cause I cannot give away, alter, or destroy them. I have lost the ability
to control my property. This not only diminishes the value of my
property, but it also invades my privacy.
The text of the Fourth Amendment seems broad enough to protect
this “right to destroy” or, in the computer context, “right to delete” by
its terms through its prohibition on unreasonable seizure. It is not
surprising that the Bill of Rights would protect such a right. There is
a long tradition of recognizing the right to destroy in property law. As
Lior Strahilevitz has discussed, at various times in legal history courts
have identified the right to destroy property as one of the “bundle of
rights” intrinsic to physical possession.25 This right is tied to the rights
of dominion and control. Although the right to destroy may seem cul-
turally or economically unsavory, it is protected because without the
extreme ability to change, delete, or destroy, virtually nothing will be
left of the rights of dominion and control.26 Furthermore, the right to
delete assures computer users that their words can be in some sense
undone. This provides a sense of privacy that may lead to more can-
dor in discussing sensitive matters electronically, and the increased
candor benefits all of society, not only the owners of the data.

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23 See, e.g., Katz, 389 U.S. at 353 (holding electronic voice surveillance to be a “search and sei-
zure”); Berger v. New York, 388 U.S. 41, 59 (1967) (“[T]he statute’s failure to describe with par-
ticularity the conversations sought gives the officer a roving commission to ‘seize’ any and all
conversations.”).
24 Kerr, supra note 5, at 533–34.
25 Lior Strahilevitz, The Right To Destroy, 114 YALE L.J. 781, 794 (2005).
26 See id. at 794–95 (describing the right to destroy as an extreme version of the rights to ex-
clude, use, and control subsequent alienation).
2005] RIGHT TO DELETE 15

A Fourth Amendment right to delete explains the reasoning and

conclusions of the wiretapping courts. Although a wiretap does not
dispossess me of my words, once it records my private conversation,
my words have been in a sense taken from me — the wiretap deprives
me of the ability to conceal or otherwise destroy those words. The
right to delete can also explain cases that have held video recordings to
be seizures under the Fourth Amendment.27
The right to delete explains why data (such as e-mail messages) dis-
closed to a third party implicate the Fourth Amendment if they are
acquired by police in real time,28 but perhaps not if they are acquired
from storage.29 Real-time surveillance is somehow seen as a greater
violation of privacy than snapshot surveillance, which can be ex-
plained by the right to delete.
E-mail revealed through a snapshot is as incriminating (and con-
versely as private) as the owner has allowed it to be. The owner has
made hundreds of privacy assessments about whether to keep or delete
old messages. The messages that remain reflect individual, intentional
decisions not to delete. Paranoid criminals will delete all incriminating
messages as soon as they are read, and those messages will likely never
be seen by police conducting snapshot surveillance.30 In contrast, evi-
dence revealed through real-time, continuous surveillance is outside
the control of the person surveilled. E-mail wiretaps typically copy all
incoming and outgoing e-mail messages before they ever arrive at the
user’s inbox,31 meaning the police can read every message belonging to
the account owner, even the paranoid owner. Surveillance perfection
— the counter to the right to delete — explains why the Fourth
Amendment may apply to real-time surveillance and not snapshot sur-
veillance.
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27 See Ayeni v. Mottola, 35 F.3d 680, 688 (2d Cir. 1994), abrogated on other grounds by Wilson
v. Layne, 526 U.S. 603, 618 (1999).
28 Cf. Berger, 388 U.S. at 51 (holding that capturing a conversation sent over a telephone line
is a Fourth Amendment search).
29 Stored e-mail messages are entrusted to third parties (ISPs), and arguably may be obtained
from those third parties without implicating the Fourth Amendment. Cf. United States v. Miller,
425 U.S. 435, 443 (1976) (holding that depositor had no reasonable expectation of privacy in the
contents of checks and deposit slips given by the depositor to a bank). But see Patricia L. Bellia,
Spyware and the Limits of Surveillance Law, 20 BERKELEY TECH. L.J. 1283, 1292 n.45 (2005)
(criticizing the Miller holding and distinguishing e-mail messages from bank records). Congress
has passed laws premised on the conclusion that e-mail messages stored with an ISP lack the full
protection of the Fourth Amendment. See, e.g., 18 U.S.C. § 2703(b) (2000 & Supp. II 2002) (pro-
viding that communications can be compelled with a subpoena or court order).
30 Never say never. Sometimes the traces of deleted e-mail messages remain on servers for
days, weeks, or indefinitely. Also, the snapshot may be taken after a message has arrived and be-
fore the user has had a chance to decide whether to delete it.
31 See United States v. Councilman, 373 F.3d 197, 219 (1st Cir. 2004) (Lipez, J., dissenting) (de-
scribing the method with which law enforcement agents typically execute e-mail wiretap orders),
rev’d on reh’g, 418 F.3d 67 (1st Cir. 2005) (en banc).
16 HARVARD LAW REVIEW FORUM [Vol. 119:10

Like the real-time surveillance of an e-mail inbox, a bit-by-bit im-

age prevents future deletion and modification. The image preserves all
of the contents of every file in the hard drive. Obviously, the owner
can still delete the original copies of the files, but the police have fro-
zen the status quo by limiting his ability to control which files they can
access. He is dispossessed of one of the bundle of rights in his prop-
erty, and to deny that this is a seizure stretches the plain meaning of
the word.32
Seizure defined as a meaningful interference with the right to delete
cannot explain all of the past cases without a slight modification.
Courts have consistently held that it is not a seizure (nor a search) to
copy or record evidence in plain view. Whether this exception makes
sense in all situations is beyond the scope of this essay, but it is consis-
tent with the right to delete. Once the police are in a position to see
items in plain view, the right to delete those things has already been
lost. For example, courts have held that photographing a search scene
is not a seizure,33 nor is using a GPS-enabled locator to track the
movements of a car along the public streets of a city.34
This exception explains Hicks. Although the bottom of the stereo
equipment was not in plain view at first, the police moved the equip-
ment slightly — an act ultimately ruled to be an unconstitutional
search — which exposed the serial number to plain view.35 If instead
Hicks had involved a technology that could pull the serial number out
from within the equipment without touching it, it would have impli-
cated the right to delete and, in my opinion, the use of that technology
would have been a seizure. Similarly, if, as Professor Kerr argues, in-
dividual files on a hard drive are “closed containers” for Fourth

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32 The Fourth Amendment may not forbid every interference with the right to delete. Follow-
ing the Hicks test, the test should be: has there been a meaningful interference with the right to
delete?
Imagine the police use a computer program that scans Internet traffic for particular text
strings. If they find a match, a search has occurred. But it is arguable that the program has not
seized every single packet flowing through the program. Although the user lost the ability to de-
lete his communications during the fraction of a second that they were held by the program, this
de minimis interference with the right to delete would not rise to the level of seizure. This tempo-
ral component and other questions of scope suggest future work beyond the scope of this essay.
Nevertheless, any definition of “meaningful interference with the right to delete” and any tempo-
ral requirements are met when the police image and keep a copy of a hard drive.
33 See Bills v. Aseltine, 958 F.2d 697, 707 (6th Cir. 1992). Photographing items in plain view
allows much greater police scrutiny. On the other hand, the police could instead remain on the
scene, studying every minute detail; the photograph helps avoid this greater intrusion, but in re-
turn, allows for a more searching inquiry.
34 See United States v. McIver, 186 F.3d 1119, 1128 (9th Cir. 1999); cf. United States v. Knotts,
460 U.S. 276, 281 (1983) (“A person traveling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one place to another.”).
35 Arizona v. Hicks, 480 U.S. 321, 327 (1987).
2005] RIGHT TO DELETE 17

Amendment purposes,36 a mirror image which reproduces everything

inside every closed container seizes those things not in plain view.
Professor Kerr ultimately concludes that imaging is a seizure, but
his solution is wholly unsatisfactory. While recognizing other possible
approaches, he notes that in order to make an image, the computer it-
self is seized through the connection of cables and by the turn of the
screw.37 This, he hopes, protects us from unfettered government imag-
ing. The problem with this approach is it hitches our constitutional
protection to today’s technology. In a future world where the mag-
netic bits encoded on the surface of a hard drive platter can be lifted
through the air without the use of cables, Professor Kerr’s analysis
would lead to the flawed conclusion that a seizure has not occurred.

III. CONCLUSION: THE RIGHT TO DELETE BEYOND

HARD DRIVE IMAGING
The right to delete has consequences beyond computer forensics. It
informs how the Fourth Amendment should be construed in the face
of new technology. Any time law enforcement uses a “collect/copy
now, analyze later” technology, they may be performing a Fourth
Amendment seizure.
Today, the right to delete is rarely encountered in the physical
world. A search of a house is a snapshot search, even if it takes hours
to conduct. After the police pack up and leave the scene, the contents
of the closed containers left behind are unseized, destructible, and de-
letable.
In contrast, indulge in science fiction momentarily: Imagine the po-
lice develop a tool that can reproduce physical objects. Every mole-
cule of every apple, teapot, and credenza — including the molecules of
the contents of the credenza — can be perfectly duplicated with this
machine, a Star Trek replicator on steroids. If the tool is used during
the lawful search of a house to reproduce every item in every closed
container in the house and the resulting copy is stored — picture a
vast warehouse with a replica of the house and all of its contents —
what is the result? Is the reproduction and storage a separate Fourth
Amendment event, and if so, is it a search or a seizure? If the repli-
cated objects are “beamed” directly into the warehouse, the doors to
the warehouse locked, and all people forbidden to enter for any reason,
courts would probably hold that a search has not yet occurred, using
the same “exposure” theory that Professor Kerr advances for computer
searches. There is a good argument that no “reasonable expectation of
privacy” has yet been invaded.
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36 Kerr, supra note 5, at 554–55.
37 Id. at 560–61.
18 HARVARD LAW REVIEW FORUM [Vol. 119:10

But it defies belief that a constitutional amendment designed to

protect privacy and to regulate the power of the state would say noth-
ing about this technology. Courts would likely conclude that the
Fourth Amendment’s prohibition on unreasonable seizure forbids this
use of the tool. Even though the occupant of the house is not physi-
cally dispossessed of anything, it ignores plain meaning to assert that
nothing has been seized. The right to delete explains this conclusion:
the police have frozen the status quo; they can obtain another warrant
to search their copy of the closed credenza at a later time, and the
owner has lost his right to dispose of the items in the credenza. These
items have been seized.
Finally, the right to delete forces us to think of “search” and “sei-
zure” as two complementary but distinct types of government intru-
sion. Too often, courts and commentators refer to “SearchAndSeizure”
as if it were one monolithic category of government action. In fact,
seizure has historically been construed as an act that affects our prop-
erty rights, not our privacy rights, while search has been the chief in-
vader of privacy. In today’s world of technology, the police increas-
ingly have the ability to invade our privacy — by depriving us of the
ability to delete — without ever searching in the traditional sense.
The wisdom of the Constitution’s drafters fills the gap between pri-
vacy and property if we recognize the modern, privacy-protecting role
of the prohibition on unreasonable seizure.