Browsing the internet is an everyday activity for many Americans. Law enforcement has capitalized on this reality by employing a novel investigative technique: reverse keyword search warrants. Keyword warrants allow investigators to obtain detailed information from search engine companies about any internet user who entered a specific phrase into the search engine. In recent years, the constitutionality of these warrants has sparked growing debate. Underlying this debate rests a critical threshold question: Does the Fourth Amendment require the government to obtain a valid warrant before accessing a person’s internet search data? Thus far, three courts have addressed the question, all reaching different conclusions.
One reason for the lack of consensus is that these courts have relied exclusively on the “reasonable expectation of privacy” test to determine whether a warrant is required to access search data. This Essay explains why assessing search data under the privacy framework leads to muddled analysis and contradictory conclusions, contributing to constitutional uncertainty. We urge courts to look instead to the traditional trespass test set out in United States v. Jones to determine whether the Fourth Amendment protects search data. By analyzing the issue through the lens of trespass, this Essay reaches a clear answer: accessing search data is a Fourth Amendment search. In doing so, this Essay adds urgency to the keyword warrant debate, advances Fourth Amendment doctrine in a rapidly evolving technological landscape, and helps realize the full protections of that constitutional guarantee.
Introduction
On July 19, 2016, someone broke into a Pennsylvania home and assaulted the woman living there.1 1.See Commonwealth v. Kurtz, 294 A.3d 509, 516–17 (Pa. Super. Ct. 2023), appeal docketed, 306 A.3d 1287 (Pa. 2023).Show More After spending two months exhausting their physical leads, law enforcement was still without a suspect.2 2.See Appellee’s Brief at 7–8, 12, Kurtz, 294 A.3d 509 (No. 811 MDA 2021).Show More So, investigators turned to Google.3 3.Kurtz, 294 A.3d at 517.Show More Specifically, they obtained a warrant directing Google to disclose detailed information associated with any user who searched the victim’s name or home address in the week preceding the attack.4 4.Id.Show More This novel investigative technique, known as a “keyword warrant,”5 5.Both throughout the literature and within this Essay, “keyword warrants” are referred to interchangeably as “keyword search warrants” or “reverse keyword search warrants.” For additional discussion regarding the mechanics of keyword warrants, see Helen Winters, Note, An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants, 107 Minn. L. Rev. 1369, 1387–89 (2023).Show More led investigators to John Edward Kurtz, who was later charged and convicted.6 6.Kurtz, 294 A.3d at 516–18.Show More On appeal, Kurtz challenged the warrant as unconstitutional, arguing that its omission of a named suspect violated the Fourth Amendment’s probable cause and particularity requirements.7 7.Appellant’s Brief at 12, 19, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). The constitutionality of keyword warrants has received significant attention. Some commentators have argued that keyword warrants are unconstitutional general warrants. See Chelsa Camille Edano, Comment, Beware What You Google: Fourth Amendment Constitutionality of Keyword Warrants, 97 Wash. L. Rev.977, 1000–02 (2022); Brian L. Owsley, Searching a Person’s Thoughts: Keyword Search Warrants and Fourth Amendment Concerns, 28 Stan. Tech. L. Rev.66, 102–03 (2025). Others have articulated theories supporting the warrants’ constitutionality. SeeMary D. Fan, Big Data Searches and the Future of Criminal Procedure, 102 Tex. L. Rev. 877, 925–27 (2024).Show More The constitutional sufficiency of the warrant was ultimately irrelevant to the case, however, because the court held that government access to Kurtz’s search data was not a search at all.8 8.Kurtz, 294 A.3d at 522.Show More Thus, no valid warrant was required to obtain his search data.9 9.The Fourth Amendment’s protections are not triggered unless a search or seizure occurs. County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998).Show More
Commonwealth v. Kurtz raises a pressing question: Can the police access your internet search history without a warrant? Because it is not clear that a keyword warrant can ever be validly issued, the constitutionality of keyword searches may depend on the threshold question of whether it is a Fourth Amendment “search” that requires a warrant.10 10.See supra note 7.Show More As of this writing, however, no consensus answer has emerged: three state courts have addressed the question, and they have all reached different conclusions.11 11.Compare Kurtz, 294 A.3d at 522 (finding that no Fourth Amendment search occurred when the government used a keyword warrant), with People v. Seymour, 536 P.3d 1260, 1272 (Colo. 2023) (finding that a keyword warrant constitutes a search, but only under Colorado’s Constitution and not the Fourth Amendment), and Commonwealth v. Clements, 113 Va. Cir. 576, 591 (2024) (finding that the government engaged in a Fourth Amendment search when it employed a keyword warrant). No federal court has published an opinion addressing the question.Show More One reason for this uncertainty is that courts have relied on the familiar “reasonable expectation of privacy” framework to answer the threshold search question.12 12.See Kurtz, 294 A.3d at 521–23 (engaging exclusively with the Katz reasonable expectation of privacy framework when considering whether a keyword warrant is a search); Seymour, 536 P.3d at 1270–72 (same); Clements, 113 Va. Cir. at 590–91 (same).Show More
This Essay seeks to change that. Part I explains why applying the reasonable expectations test to search data produces contradictory results. Part II urges courts to look instead to the traditional trespass test endorsed in United States v. Jones to determine whether the Fourth Amendment protects search data. Though the Supreme Court has never applied the trespass test to intangible property, we explain why adopting this approach in the context of search data is consistent with Fourth Amendment jurisprudence and produces a clear answer: accessing search data is a search. Finally, Part III addresses the limitations of our trespass analysis and explores its impact on existing case law.
- See Commonwealth v. Kurtz, 294 A.3d 509, 516–17 (Pa. Super. Ct. 2023), appeal docketed, 306 A.3d 1287 (Pa. 2023). ↑
- See Appellee’s Brief at 7–8, 12, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). ↑
- Kurtz, 294 A.3d at 517. ↑
- Id. ↑
- Both throughout the literature and within this Essay, “keyword warrants” are referred to interchangeably as “keyword search warrants” or “reverse keyword search warrants.” For additional discussion regarding the mechanics of keyword warrants, see Helen Winters, Note, An (Un)reasonable Expectation of Privacy? Analysis of the Fourth Amendment When Applied to Keyword Search Warrants, 107 Minn. L. Rev. 1369, 1387–89 (2023). ↑
- Kurtz, 294 A.3d at 516–18. ↑
- Appellant’s Brief at 12, 19, Kurtz, 294 A.3d 509 (No. 811 MDA 2021). The constitutionality of keyword warrants has received significant attention. Some commentators have argued that keyword warrants are unconstitutional general warrants. See Chelsa Camille Edano, Comment, Beware What You Google: Fourth Amendment Constitutionality of Keyword Warrants, 97 Wash. L. Rev.
977, 1000–02 (2022); Brian L. Owsley, Searching a Person’s Thoughts: Keyword Search Warrants and Fourth Amendment Concerns, 28 Stan. Tech. L. Rev.
66, 102–03 (2025). Others have articulated theories supporting the warrants’ constitutionality. See Mary D. Fan, Big Data Searches and the Future of Criminal Procedure, 102 Tex. L. Rev.
877, 925–27 (2024).
- Kurtz, 294 A.3d at 522. ↑
- The Fourth Amendment’s protections are not triggered unless a search or seizure occurs. County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998). ↑
- See supra note 7. ↑
- Compare Kurtz, 294 A.3d at 522 (finding that no Fourth Amendment search occurred when the government used a keyword warrant), with People v. Seymour, 536 P.3d 1260, 1272 (Colo. 2023) (finding that a keyword warrant constitutes a search, but only under Colorado’s Constitution and not the Fourth Amendment), and Commonwealth v. Clements, 113 Va. Cir. 576, 591 (2024) (finding that the government engaged in a Fourth Amendment search when it employed a keyword warrant). No federal court has published an opinion addressing the question. ↑
- See Kurtz, 294 A.3d at 521–23 (engaging exclusively with the Katz reasonable expectation of privacy framework when considering whether a keyword warrant is a search); Seymour, 536 P.3d at 1270–72 (same); Clements, 113 Va. Cir. at 590–91 (same). ↑