(University of Oregon School of Law, 2011) Oppenheimer, Max Stul
Information stored in a physical object receives the same Fourth Amendment protection as the physical object in which it is stored. See United States v. Karo, 468 U.S. 705 (1984). As information moves online, it becomes independent of physical objects, and therefore traditional rules must be reexamined. Others have argued persuasively, and courts appear receptive to the argument, that online communications and data should receive the same protection as their analogs embodied in the physical world. Even assuming that this conclusion will be universally accepted, a troubling consequence remains: the clear weight of authority holds that Fourth Amendment protection does not apply to information embodied in discarded physical trash. If this rule for discarded physical trash translates into cyberspace, then even if online communications and data are protected, “cybertrash”—deleted e-mails and other files—is not protected.
