Katz cradle: holding on to Fourth Amendment parity in an age of evolving electronic communication.

• Author: Brennan, Christopher R.

TABLE OF CONTENTS INTRODUCTION I. THE FOUNDATIONS OF CONTEMPORARY FOURTH AMENDMENT ANALYSIS A. Communication at the Founding: Ex Parte Jackson and the Protection Afforded to Letters B. Communication Evolves: Embracing the Telephone in Katz and Justice Harlan's Reasonable Expectation of Privacy C. Contents in Context: Business Records and the Third-Party Doctrine II. CONGRESS INTERVENES: THE ELECTRONIC COMMUNICATIONS PROTECTION ACT A. The Federal Wiretap Act B. The Stored Communication Act III. RESTORING PARITY: A TECHNOLOGY-NEUTRAL APPROACH FOR ELECTRONIC COMMUNICATIONS IN ACCORDANCE WITH KATZ, MILLER, AND SMITH A. The Transactional Relevance Test: A Technology-Neutral Definition for Noncontent B. Assigning Protections Under the Transactional Relevance Test CONCLUSION INTRODUCTION

The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. (1) The Fourth Amendment provides for "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (2) As with many phrases of the Constitution, this right has become a font of considerable complexity as courts have expanded its reach to cover a wealth of interactions between the government and individuals. (3) Perhaps no other set of interactions better illustrates this complexity than the current laws and interpretations defining the Fourth Amendment's application to electronic forms of communication. (4) Despite the prevalence of electronic communication in the everyday interactions of the average American, (5) the current landscape of statutory authority and judicial interpretation on the government's ability to seize electronic communications can best be described as outdated and disjointed. (6)

Yet one could hardly fault legislative sloth and judicial trepidation given the breakneck pace that has characterized the last decade of technological innovation. E-mail has left the laboratories of college campuses for middle schoolers' iPhones. In a matter of a few years, Myspace rose and fell to Facebook's present dominance. (7) Twitter hashtags chart trends in real time. But beyond the pack aging--an unending variety of ways that programmers can repack and reinvent the binary string of ones and zeros that now allows us to e-mail and video chat--the messages remain the same. People share news; they gossip. Secrets are told and confidences kept or broken. This Note stems from the simple belief that if the message remains the same, the Fourth Amendment should as well. Whether by letter, telephone, e-mail, or video, the Fourth Amendment should ensure parity between the mediums that transmit any given message.

Part I begins with a review of the Supreme Court's early constitutional jurisprudence on the intersection of government surveillance in communication and the Fourth Amendment. This review is centered on the Court's reasoning in Katz v. United States. (8) Katz was the genesis of contemporary thought on Fourth Amendment protections for the seizure of electronic communications. In Katz, the Court determined that the Fourth Amendment applied to the government's eavesdropping on a telephone call from a public pay phone, despite the lack of a physical "trespass" by the government. (9) The language in Katz stating the Fourth Amendment protects "people, not places" specifically rejects a property-based approach to Fourth Amendment analysis. (10) Likewise, the Court's statement that "what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected," supports the notion that the protections of the Fourth Amendment should not be applied relative to the technology used to communicate the message. (11) In the aftermath of its landmark decision in Katz, the Court narrowed the potential scope of its language in United States v. Miller (12) and Smith v. Maryland when involving business records or communications held by a third party. (13)

Part II interjects Congress's attempt at statutory guidance via the Electronic Communications Privacy Act of 1986 (ECPA). (14) Unfortunately, the ECPA's assortment of procedural hurdles is based on arbitrary distinctions among content types and ultimately fails to adhere to the Supreme Court's guidance in Katz, Miller, and Smith. (15) Given these failings, the ECPA is an outdated framework in desperate need of meaningful modernization.

Addressing these failures, Part III suggests a simplified approach that rests upon a content/noncontent distinction. In distinguishing between content and noncontent, this Note formulates a "transactional relevance" test. (16) This test will allow for the evolution of technology while maintaining parity with the reasonable expectation of privacy test that the Court established in Katz. An important complement to the transactional relevance test is the dismissal of the arbitrary distinctions among content under the Stored Communications Act of the ECPA. The effect of the transactional relevance test is that warrant-level protections for content are maintained in accordance with the Supreme Court's guidance under Katz without regard to evolving technology.

1. THE FOUNDATIONS OF CONTEMPORARY FOURTH AMENDMENT ANALYSIS

   When the Founders adopted the Fourth Amendment in 1791, (17) they could not have imagined, much less anticipated, a nation in which communications could instantaneously move from origin to destination. Yet this fact should have little moment in resolving the challenges posed by today's technology, as the Constitution has proven to be remarkably adaptive to the passage of time. (18) This Part examines the Supreme Court's jurisprudence regarding Fourth Amendment protections for well-established communication mediums such as the first class postal letter, the telegraph, and the telephone. The Court's analysis of these early mediums merits a detailed review. Indeed, the cases addressing these "traditional" mediums establish important Fourth Amendment doctrines that can be applied through analogy to today's digital counterparts. (19)

   1. Communication at the Founding: Ex Parte Jackson and the Protection Afforded to Letters

      The only communication medium contemporaneous with the Fourth Amendment is the letter. The Fourth Amendment explicitly refers to "papers" when enumerating areas within its scope. (20) The Court first discussed the Fourth Amendment's protections for "papers" as a medium for communication by letter in a case from 1877, Ex parte Jackson. (21) The Court's ruling upheld a statute prohibiting the use of the postal system to circulate lottery materials, but in dictum the Court established the foundations of Fourth Amendment protections against warrantless searches of communications. (22) Writing for the Court, Justice Field stated that "[l]etters and sealed packages ... are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles." (23) No law could empower the government, via its postal inspectors, to violate the protections afforded to the contents of sealed letters and packages by the Fourth Amendment. (24) To inspect sealed items in transit through the postal system, the government was required to procure a warrant based upon probable cause. (25)

      The protections for sealed postal mail under Ex parte Jackson also carried two notable restrictions. First, the Court was clear to distinguish sealed mail, such as a letter, from mail that was left open to examination, such as a newspaper or printed pamphlet. (26) In subsequent cases and statutes, this content/envelope distinction became a dividing line when determining which communications, or what elements of a communication, the Fourth Amendment protects. (27) Second, the Court found that the Fourth Amendment certainly did not prevent an individual who received a package that contained a prohibited mailing from delivering that package to the government. (28) The recipient of a delivered communication is not restricted by any Fourth Amendment right of the sender. The termination of a sender's Fourth Amendment rights as to a delivered communication in the possession of another forms the underpinnings of the third-party exception. (29) Like the envelope/content distinction, expansive use of the third-party doctrine has played a critical role in distorting the protections afforded to electronic communications. (30)

   2. Communication Evolves: Embracing the Telephone in Katz and Justice Harlan's Reasonable Expectation of Privacy

      When the Court decided Ex parte Jackson in 1877, the telegraph was already widely deployed across the country after having played a critical role in communication during the Civil War. (31) The Supreme Court never addressed the Fourth Amendment's extension to telegraph transmissions, (32) instead leaving the issue to Congress and the lower courts. (33)

      The telephone, as the telegraph's successor, first drew the Court's attention in Olmstead v. United States. (34) In Olmstead, federal prohibition officers wiretapped multiple phone lines in order to gather evidence regarding a conspiracy to violate the National Prohibition Act. (35) The officers inserted wiretaps in the phone lines at junctions outside the conspirators' property. (36) Roy Olmstead, the lead conspirator, and his coconspirators later argued that the wiretap amounted to search and seizure under the Fourth Amendment. (37)

      The Court rejected Olmstead's argument on multiple grounds. First, the Court determined that the language of the Fourth Amendment dictated that a "search is to be of material things." (38) On this basis, the Court distinguished Ex parte Jackson. (39) Second, the Court reasoned that the "Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted." (40) Despite the telephone's existence in...