This Article argues that Web users should enjoy a legitimate expectation of privacy in clickstream data. Fourth Amendment jurisprudence as developed over the last half-century does not support an expectation of privacy. However, reference to the history of the Fourth Amendment and the intent of its drafters reveals that government investigation and monitoring of clickstream data is precisely the type of activity the Framers sought to limit. Courts must update outdated methods of expectation of privacy analysis to address the unique challenges posed by the Internet in order to fulfill the Amendment's purpose. Part I provides an overview of the Internet and cickstream data collection, and explains the value of this data to law enforcement. Part II discusses general Fourth Amendment principles, then explores how these principles have been, and are likely to be, applied to the Internet. Part III explores the intent of the Fourth Amendment's drafters, analogizes clickstream searches to the general searches the Framers sought to prohibit, and argues that the values underlying the Fourth Amendment require courts to eschew the traditional two-prong expectation of privacy test in favor of a normative inquiry which recognizes a legitimate expectation of privacy in clickstream data.
Establishing a Legitimate Expectation of Privacy in Clickstream Data,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol6/iss1/3