- June 18, 2007
Under current Fourth Amendment doctrine, parties to a communication enjoy constitutional protection against government surveillance only when they have a reasonable expectation of privacy in those communications. This paper discusses the insufficiency of the reasonable expectation of privacy test in the context of modern communications. Significantly, courts have required that communications media be virtually invulnerable before affording them Fourth Amendment protection.
That approach not only misses the point of the Katz case, which established the reasonable expectations of privacy test, but also dramatically under protects privacy, with pernicious results. This paper articulates a first principles approach to constitutional protection that focuses on the reasons electronic surveillance requires significant judicial oversight. In particular, it argues that electronic surveillance that is intrusive, continuous, indiscriminate, and hidden should be subject to the heightened procedural requirements imposed on government wiretappers. Because much of modern online surveillance shares those characteristics, it should be subject to the highest level of constitutional regulation. Audio from Susan Freiwald's presentation of her paper at the 2007 STLR Symposiusm can be accessed here.
Comments
Last month Charter Communications announced that it would track its ISP customers' online usage (web sites visited, search terms entered, etc.) through a process called "deep packet inspection." As I understand it, this technology allows an ISP to inspect each packet of data transmitted from a subscribers' computer, extract certain data, connect it with a unique user ID, store that information, and provide it to an online marketing firm, NebuAd, in order to create a detailed marketing profile of each subscriber.
Charter had planned to launch this program in small markets in California, Texas, Connecticut and Massachussets, but has run into opposition from Congress, the Connecticut Attorney General, and citizens.
More recently, I participated in a news conference held by the CT Attorney General, who called for a suspension of the planned pilot program on grounds that it may violate two fedeal laws.
Many of the reporters in the room that day questioned why such activity is a big deal. "Isn't this just like Amazon.com tracking what you buy online?" Was a typical question.
I found these questions disturbing. Beyond reflecting a limited understanding of the technology and its capabilities, I believe many people are missing a broader, more serious and (most likely) unintended consequence of deep packet inspection for commercial use.
If we allow any company to sift through our data communications and extract, at its discretion, the bits that may be of commercial interest to retailers and advertisers haven't we effectively relinquished our expectation of privacy in regard to all Internet-based communications? And, more importantly, based on the interpretation of Katz as described here, are we then opening the Internet entirely to government inspection--in effect nullifying the 4th Amendment for the electronic age?
I encourage STLR faculty and students to explore this issue, especially in relation to the issues raised by Jennifer Granick and others on this page.
Not a lawyer here, but it seems to me the expectation of privacy should be presumptive. Certain things are obvious. You have no expectation on a public street or in a building open to the public. But outside of public venues, whether you are sitting in front of your computer at home, talking to your wife in the fenced backyard, or using your cell phone in an area well away from other people, there should always exist a reasonable expectation, regardless of how widespread intrusive technology is.
I was lucky enough to have time to see Professor Freiwald's short talk on her four-factor replacement test for Katz at the USF Law Review's symposium last fall. Part of the reason we've scheduled this panel first is that Katz is a fundamental issue that affects all Fourth Amendment discussions about other technologies. I suspect that - for us nonacademics - an important and basic observation for every panel will be whether each participant supports staying within the Katz framework, with modifications, or abandoning it altogether.
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