PPSA asks Supreme Court to apply privacy principles to the digital cloud

Cloud Data Should Not Be an Open Book for the Government

Every day, Americans store their most personal information in the cloud. Our photos, messages, financial records, search histories, and private documents now reside on servers owned by tech companies like Google, Apple, Microsoft, and Snapchat. The question before the courts is increasingly simple:

Does storing data with a third-party service provider mean surrendering your Fourth Amendment rights?

PPSA is telling the U.S. Supreme Court the answer must be no when government pressure is exerted on highly regulated companies to search the content of Americans’ data.

The case arises from a Wisconsin prosecution in which a file uploaded to Snapchat was flagged for potentially illegal content, namely suspected child sexual abuse material, by automated scanning software and reported to authorities. A law enforcement officer then conducted the first human review of that file without obtaining a warrant. 

The Wisconsin Supreme Court held that the user lacked a reasonable expectation of privacy because the data was stored with a third-party – Snapchat, which conducted the initial search – as permitted by its terms of service, which reserves the right to “screen” for illegal content. It is on this basis that the Wisconsin court determined that no warrant was needed.

In our brief, PPSA demonstrates that such reasoning turns the Fourth Amendment upside down when such searches are conducted under pressure from the government. If the logic of this case is accepted, digital third parties can become vehicles for extinguishing constitutional rights.

The Supreme Court rejected a similarly sweeping approach in Carpenter v. United States. In that landmark 2018 decision, the Court held that the government generally must obtain a warrant before accessing historical cell-site location records, even though those records were held by a third-party company. The Court recognized a basic truth about modern life: participation in the digital world requires us to entrust vast amounts of our lives to service providers. That necessity does not eliminate our expectation of privacy. 

This case offers the Court the chance to extend the principles of Carpenter with even greater force to cloud storage.

Americans do not upload files to the cloud because they wish to expose them to government scrutiny. They do so because cloud services have become the digital equivalent of filing cabinets, photo albums, desk drawers, and personal archives. As PPSA demonstrates, earlier generations routinely entrusted private property and correspondence to third parties for storage, transport, or safekeeping without forfeiting constitutional protections. The same principle that protected privacy then should govern digital information today. 

This case also raises a troubling question about government outsourcing. Federal and state laws increasingly pressure technology companies to scan user content and report suspicious material. When companies perform searches because the government effectively requires them to do so, those searches begin to resemble state action rather than truly private conduct. As PPSA has shown, government-mandated reporting cannot become a loophole for bypassing the warrant requirement. 

The Supreme Court recognized in Carpenter that constitutional liberties must survive technological change. If the government can freely inspect because it has coerced third-party services into conducting searches, then one of the most important privacy protections in American law will become little more than a relic of the pre-digital age.

While all decent people want to eradicate child sex abuse material, constitutional shortcuts used to detect heinous crimes create a new logic by which the government will be able to inspect content in cloud-stored data for any reason or no reason at all.
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PPSA is urging the Court to ensure that this does not happen.

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