The Fourth Amendment in the 21st Century: The Modern Equivalent of Papers and Effects?

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One of the comments to my earlier post on the Fourth Amendment was interesting:

These records are the modern equivalent of papers and effects. Excluding these records from the protection of the Fourth Amendment is as logically sound as excluding Internet and telephone and television communications from the protections of the First Amendment or excluding any firearm more advanced than a flintlock-actuated black powder muzzle-loader from the protections of the Second Amendment because these things were not even dreamed of by the framers of the Constitution.

This is interesting, but I don’t agree.

I think one’s cell phone is an effect.  And so a search of the phone is certainly covered by the Fourth Amendment.  But I don’t think the phone records of the cell phone company are effects.  One need not consider modern circumstances to answer that question.  The cell phone records are like a record by a ship owner in 1787, listing the property that people had brought on the ship.  This record is unlikely to have been deemed the effect of the property owners (although it would be a paper of the ship owner).

The best case for treating the records as an effect is if there were a private contract between the customer and the phone company that required the records to be kept private.  If the contract provided that the records were the property of the customer, held in custody by the phone company, then that would probably make them an effect.  If there were merely a contractual right for the records not to be released, that might make them an effect, but it is not clear.

The comment suggests that treating the business records as covered is similar to treating speech over television or the internet as covered by freedom of speech. But I don’t think so.  Speech is speech, whether in a public park or over television.  A better argument would claim the question is analogous to whether television news involves freedom of the press.  But some argue that press means a method of mass producing speech, which would cover television news.  Even if that were not the definition of press, one probably needs to ask of new technologies how closely analogous they are to traditional technologies.  In the case of cell phones, the closer analogy are the records of ship owners.  (By contrast, this type of argument might work to address interceptions of cell phone calls.  This is a new technology and perhaps this is similar to the post office opening your  mail.)

To get the business records covered by the Fourth Amendment, I think one needs to go several steps further and treat the constitutional language not as binding law but instead as an abstract principle to be translated into modern day circumstances.  Under this view, the language might not matter that much, and the fact that technology has changed the world would suggest that the business records are the modern day version of papers and effects.

This is a possible way of interpreting the Constitution that some people find attractive.  But I don’t.