Information stored in a physical object receives the same Fourth
Amendment protection as the physical object in which it is stored.
As information moves online, it becomes independent of physical
objects, and therefore traditional rules must be reexamined. Others
have argued persuasively/ and courts appear receptive to the
argument, that online communications and data should receive the
same protection as their analogs embodied in the physical world.
Even assuming that this conclusion will be universally accepted, a
troubling consequence remains: the clear weight of authority holds
that Fourth Amendment protection does not apply to information
embodied in discarded physical trash. If this rule for discarded
physical trash translates into cyberspace, then even if online
communications and data are protected, "cybertrash"-deleted emails
and other files-is not protected.
Max S. Oppenheimer,
Available at: http://scholarworks.law.ubalt.edu/all_fac/890