Storing Documents in the Cloud: Toward an Evidentiary Privilege Protecting Papers and Effects Stored on the Internet
![handle is hein.journals/gmcvr23 and id is 267 raw text is: STORING DOCUMENTS IN THE CLOUD:
TOWARD AN EVIDENTIARY PRIVILEGE PROTECTING PAPERS
AND EFFECTS STORED ON THE INTERNET
Jacob M. Small*
INTRODUCTION
In June 1789, James Madison presented a proposal to the House
of Representatives that, after winding its way through the legislative
process, became the Bill of Rights: the first ten amendments to the
United States Constitution.' Had he written the amendments today,
he might have done so on a computer. But as it was 1789, he likely set
quill to parchment. And when he penned the Fourth Amendment, he
extended its protection to persons, houses, papers, and effects,2 a
phrase that clearly encompassed that parchment and quill.
But today, many documents are electronic. And increasingly,
those electronic documents are stored, not on their owners' com-
puters, but on those of third-party companies.' These companies offer
so-called cloud computing services that allow users to produce, edit,
and store documents on the companies' hardware.' The cloud corn-
* Associate Attorney, The Spiggle Law Firm in Arlington, Virginia; J.D., George Mason
University, Civil Rights Law Journal. I wish to thank my wife Jennifer Small for her patience
and support and my grandmother Ann Hunter for her advice and editorial expertise.
I Preface, 12 PAPERS OF JAMES MADISON 185 (Charles F. Hobson et al. eds., The Univer-
sity Press of Virginia 1979); HERMAN AMES, TiHE PiRPosi AMENDMENTS TO THE CONSTITU-
TION OF THE UNITED STAT Is DURING TIE FIRsr CENTURY OF rIs HisToiRy, 184 (Lenox Hill
Publ'g & Distrib. Co. 1970).
2 U.S. CONSI. amend. IV.
3 John B. Horrigan, Cloud Computing Gains in Currency: Online Americans Increasingly
Access Data and Applications Stored in Cyberspace, PEw RESEARCH CENTER (Sept. 12, 2008),
http://pewinternet.org/~/media//Files/Reports/2008/PIPCloud.Memo.pdf.pdf (Some 69% of
online Americans use webmail services, store data online, or use software applications whose
functionality is located on the web.) (last visited February 23, 2013).
4 Timothy D. Martin, Hey! You! Get Off of My Cloud: Defining and Protecting the Metes
and Bounds of Privacy, Security, and Property in Cloud Computing, 92 J. PAT. & TRADEMARK
Or'i. Soc'y 283, 287 (2010) (Rather than storing and accessing information on [their] desktop
computer, [cloud computing users'] data and software exist on remote servers and are accessible
wherever [they] happen to be.) (quoting Brad Smith, Senior Vice President and General Coun-
sel, Microsoft, Keynote Address at the Brookings Institution: Cloud Computing for Business and
255](ViewImageLocal?handle=hein.journals/gmcvr23&div=16&collection=journals&method=preview&ext=.png&size=3)
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Storing Documents in the Cloud: Toward an Evidentiary Privilege Protecting Papers and Effects Stored on the Internet
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