Does the Fourth Amendment Apply To Hashes?
The discussion of whether the Fourth Amendment applies to hashing has been largely academic and one-sided so far. The Fourth Amendment provides “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Warrantless government searches are presumptively unreasonable.8 Importantly, however, a “search” occurs within the meaning of the Fourth Amendment only when the target has demonstrated a subjective expectation of privacy, and society is prepared to recognize that expectation as reasonable.9 In 2005, Professor Orin Kerr wrote Searches and Seizures in a Digital World, a comprehensive article discussing how the Fourth Amendment should regulate government access to computers and digital information.10 Among other things, Kerr suggested that a government search through information on a computer should be defined by an “exposure-based approach” — that is, a search should occur only when digital info
