Nothing New Under the Sun? a Technologically Rational Doctrine of Fourth Amendment Search - Stephen E. Henderson

• Publication year: 2005

Nothing New Under the Sun? A Technologically Rational Doctrine of Fourth Amendment Searchby Stephen E. Henderson^*

I. Introduction

In late 2002 the Pentagon's Defense Advanced Research Projects Agency ("DARPA") launched an ill-named, if not entirely ill-advised, data-mining initiative as part of its response to the terrorist attacks of September 11,2001. Under the direction of Vice Admiral John M. Poindexter, infamous for his role in Iran-Contra,' DARPA dubbed the program "Total Information Awareness" ("TLA"). The goal was to amalgamate a mammoth database of existing commercial and governmental information, from Internet mail and calling records to banking transactions and travel documents, which would be analyzed by a to-be developed computer system capable of spotting suspicious behavior.²

As the brainchild of an office whose motto was "Scientia Est Potentia" ("Knowledgeis Power"), the Orwellian connotations of TIA did not go unheeded.³ In the words of critic William Safire,

Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend—all these transactions and communications will go into what the Defense Department describes as "a virtual, centralized grand database." To this computerized dossier on your private life from commercial sources, add every piece of information that government has about you—passport application, driver's license and bridge toll records, judicial and divorce records, complaints from nosy neighbors to the F.B.I., your lifetime paper trail plus the latest hidden camera surveillance — and you have the supersnoop's dream: a "Total Information Awareness" about every U.S. citizen.⁴

As a result of such libertarian concern and aggravated by the choice of Admiral Poindexter to lead the program, Congress ultimately legislated not only TIA's demise, but that of the entire office that spawned the initiative.⁵ This will not be the last word, however. Even now much of the TIA framework continues under other names in other agencies, and private entities are hard at work gathering data for similar private initiatives.⁶ In the words of Admiral Poindexter, "It's very important that this research be continued. I think it eventually will be. I'm an optimist."⁷

While databases such as TIA are only one of many significant threats to privacy and information security in the twenty-first century,' the concept of TIA (merely collecting what was voluntarily provided to third parties) and the strident and swift political response (against a database in which we would all be includegd) have lessons for how we should think about the Fourth Amendment in a world of amazing but intrusive technology. The Fourth Amendment's prohibition against unreasonable searches and seizures" is only relevant to certain activity. When employers and other private individuals conduct surveillance, or ask us to trade our privacy for a perk," the Fourth Amendment is not implicated.'' If the government desires to commit a similar intrusion into our privacy, but we consent, the Amendment provides no restraint. ¹³ But even outside these longstanding limitations, a real risk exists that Supreme Court jurisprudence defining a "search" may render the Amendment increasingly irrelevant.

The Fourth Amendment is only implicated when the government invades our "reasonable expectation of privacy."¹⁴ According to the Supreme Court, we retain no reasonable expectation of privacy in what we knowingly expose to the public.¹⁵ As technology dictates that more and more information regarding our personal lives is available to anyone equipped to receive it, and as social norms dictate that more and more information is provided to third parties, this restriction threatens to render the Fourth Amendment a practical nullity. The current definition of what constitutes a Fourth Amendment search was crafted in light of one developing technology, the telephone networks. Now is the time to craft a definition that accommodates the amazing but intrusive technologies of the twenty-first century.

This Article will first review the genesis of the "reasonable expectation of privacy'' ("REP)requirement, both to establish the governing legal framework and to demonstrate how changing technology has altered our conception of the Fourth Amendment search in the past. This includes the "third party cases," in which the Supreme Court articulated and developed the doctrine that one retains no reasonable expectation of privacy in information provided to a third party.

This Article then examines a pressing and undecided issue that helps to frame the need for doctrinal clarification, namely whether there is a reasonable expectation of privacy in electronic mail in unencrypted and encrypted form. This analysis and an examination of several developed and developing technologies, make clear that the "third party doctrine" must be strictly construed if the Fourth Amendment is to meaningfully limit government intrusions. "Knowing exposure'' should not remove information from the protection of the Fourth Amendment, but rather only affirmative desire that content be utilized by a third party. This will avoid the dangerous incentive effect in which those very searches receiving little to no Fourth Amendment protection are also becoming cheaper to perform.

With the reasonable expectation of privacy doctrine so limited, or even jettisoned altogether in favor of a dictionary definition of "search,"courts can properly turn their focus to what intrusions are "reasonable." This Article concludes by examining three potential guideposts in this determination: government need, political process checks, and use limitations.

II. From Olmstead to Katz—the Genesis of the "Reasonable Expectation of privacy"

Olmstead v. United States" came before the Supreme Court during Prohibition in 1928. Although Prohibition itself was relatively shortlived, at least as a national policy,¹⁷ the issue confronted by the Court remains contentious—how should the Fourth Amendment's prohibition against "unreasonable searches and seizures" be applied to novel technologies not available to, and perhaps not even conceivable to, the Framers."

The criminal scheme in Olmstead was of "amazing magnitude," involving the importation and sale of liquor on a massive scale.¹⁹ Over seventy individuals were indicted, including Roy Olmstead, who acted as "general manager" and received half of the operation's profits. An operation of this scale required ample means of communication, which were provided via telephone. Three lines led into the organization's main office, at which someone was always present to take orders, and Olmstead and his co-conspirators also placed and received calls from their respective residences."

Federal agents obtained much of their evidence from this relatively state-of-the-art communications system. The agents tapped the lines running from the residences and the main office.²¹ While these taps could have been conducted within the boundaries of defendants' property, none of them were. The residential taps were made in the streets near the homes, and the taps for the office lines were made in a basement in which defendants had no property interest."

Based on the Fourth Amendment language protecting "[t]he right of the people to be secure in their persons, houses, papers, and effects,"²³ the Court stated "[t]he amendment itself shows that the search is to be of material things—the person, the house, his papers, or his effects."²⁴ This language easily encompasses some modes of communication, such as a letter sent via the United States Post Office because "[t]he letter is a paper, an effect."²⁵ In the opinion of the Court, however, it was equally clear that this language did not encompass the mode of communication at issue, namely the transmission of the human voice via an analog electronic signal.²⁶ The Court stated, "The amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that

The outcome may have been different had the tapping of the phone lines been accomplished via entry onto the defendants' property, and hence threatened the security of their "houses."²⁸ Here, there was no such entry, and according to the Court,

[t]he language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office, any more than are the highways along which they are stretched . . . . [Conversations] passing over [telephone wires] are not within the protection of the Fourth Amendment.²⁹

Thus, the Court adopted what has come to be termed the "property-based or "trespass-based conception of the Fourth Amendment: if there was no encroachment on a defendant's property interest, there could be no violation of the Fourth Amendment.³⁰

Fearing that the Court had overlooked the necessity of adapting constitutional guarantees to a changing world, Justice Brandeis, in dissent, presciently worried that "[w]ays may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home." ³¹ Although some of Justice Brandeis's concerns were perhaps unrealistic,³² technological developments since 1928 have given continued credence to his basic assertion that "[d]iscovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet."³³

Despite Justice Brandeis's impassioned and eloquent dissent,³⁴ the property-based...