Technology, privacy, and the courts: a reply to colb and swire.

• Author: Kerr, Orin S.
• Position: Response to articles in this issue, p. 889, 904

TABLE OF CONTENTS I. REPLY TO PROFESSOR COLB II. REPLY TO PROFESSOR SWIRE CONCLUSION I thank Sherry Colb and Peter Swire for devoting their time and considerable talents to responding to my article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution. I will conclude with a few comments.

1. REPLY TO PROFESSOR COLB

   I very much enjoyed reading Professor Colb's response, although I think at times it misunderstands my article. To clarify, my article does not present a defense of the physical-trespass test in Fourth Amendment law; it does not answer how the Fourth Amendment should apply to a hypothetical brain-wave recorder; it does not argue that the use of property principles is proper in light of originalist or other theories of constitutional interpretation; and it does not claim that there should be no role for the Fourth Amendment in cases that involve developing technologies. (1) My article does not endorse any particular Fourth Amendment test, and has nothing positive to say about the pre-Jones physical-trespass approach. I do note that property concepts appear with surprising regularity when judges interpret the Fourth Amendment. Even when purporting to protect privacy, judges have proven reluctant to deviate from rules based on principles of property law. I make this argument not to endorse property law as a specific normative principle of interpretation, but rather to show how courts have interpreted the post-Katz Fourth Amendment in a narrow way with important ramifications for the Fourth Amendment in new technologies. We can debate why this is so: my own suspicion is that judges understand property concepts, but have no common framework for assessing and evaluating privacy claims. (2) Whatever the reason, I have no necessary sympathy for the property approach. I argue that judicial modesty has important virtues in this area, but such modesty can be achieved under a privacy approach as well. (3)

   More broadly, my article presents a pragmatic case for judicial caution in the face of rapid technological change, not a defense of property law as a guide for interpreting the Fourth Amendment. It attempts to bring about a greater awareness of the role of statutory privacy laws and the gap between the perception and reality of where privacy rights governing new technologies originate. While scholars focus on the Constitution, the primary privacy protections regulating new technologies have come from Congress. To be sure, this may be the kind of technical and arcane issue that only a law professor could find interesting; as Professor Colb notes, most people care about whether their privacy is protected, not what branch of government confers that protection. (4) But for readers concerned with the structure and contour of privacy laws, I offer a pragmatist case for why we should focus more on statutory protections and less on developing theories of constitutional protection. Fourth Amendment history, doctrine, and the institutional limitations of the courts suggest that the vital work of protecting privacy in response to technological change will come more from Congress than from the courts.

   Colb makes two interesting practical arguments against judicial caution. First, she suggests that judicial deference is unnecessary because even broad judicial privacy protection would not overprotect privacy interests? I understand Colb's argument as one of substantive preference: Colb greatly values privacy, and she calculates that within the set of feasible outcomes more privacy will always be better. Because the courts are unlikely to interpret the Fourth Amendment in a way that provides more privacy than Colb would want, there is no harm if the courts interpret the Fourth Amendment broadly. (6) In my view, the problem with this argument is that it overlooks the difficulties judges face when they craft privacy rules regulating developing technologies. Colb may be right that most judges will not intentionally create rules that are more privacy protecting than she would want. But attempts to protect privacy can backfire, and the context of judicial rulemaking makes missteps particularly likely. As a result, judicially crafted rules are particularly likely to have unintended consequences that even a privacy-valuing observer would dislike. Consider Judge Magnuson's holding in United States v. Bach (7) that the Fourth Amendment requires a law-enforcement officer be physically present whenever an internet service provider ("ISP") responds to a search warrant for information on its servers. (8) Judge Magnuson believed that his rule would protect privacy, but his failure to understand the relevant technology created a mismatch between his values and the effect of the resulting rule. If the Eighth Circuit had not overturned his decision, Magnuson's rule either would have slowed investigations considerably without any benefit to privacy or else required police officers to be stationed permanently at ISPs. It is hard to see how either outcome would achieve the goal of protecting privacy.

   Colb also argues that Congress may be unable to protect privacy adequately because it may lack the constitutional authority to do so. (9) I think her concern is overstated. Colb's analysis overlooks the expansive reach of the modern Commerce Clause, which provides broad authority to regulate the use of developing technologies. The Supreme Court has interpreted the Commerce Clause to give Congress essentially unlimited power over instruments of interstate commerce such as communications networks. (10) As a practical matter, this means that Congress can regulate anything connected to the Internet. (11) In addition, lower courts for the most part have allowed Congress to regulate the use of technological instruments that have traveled in interstate commerce prior to their use. (12) For example, use of a camera to create images of child pornography can be regulated by Congress if the camera or film has traveled in interstate or international commerce. (13) This theory permits Congress to regulate the use of nearly every camera and all film. If upheld by the Supreme Court, it would allow Congress to regulate the use of new technologies by state and local governments without any significant limits. Because nearly every technological tool travels across state lines prior to its use, it seems likely based on existing law that Congress can regulate technological instruments under the Commerce Clause.

2. REPLY TO PROFESSOR SWIRE

   Professor Swire's thoughtful article offers a series of arguments in support of a strong role for the courts in...