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.

These are the rough notes from my comments as a panelist this morning.

Technology magnifies both access to this information and the inferences we can draw from it.

Technological change means that contrary to what Salgado calls a basic of Anglo jurisprudence, stored communications are far more revealing than those in transit

Contrary to the insights of US v. Miller and Smith v. Maryland, information in the hands of third parties is often of the most sensitive type.

Susan rejects invulnerability in favor of asessing the importance of the information
assent to access for some purposes vs implied assent to all

Not binary.

If this information is not constitutionally protected, then what good is the Fourth Amendment?

With this article, Prof. Friewald takes on an important question of how the Fourth Amendment can remain relevant to the question of information and communication privacy given these dramatic changes.

Fundamental to the article, and to all of the papers is the question of what the Fourth Amedment is supposed to do. Much writing on the topic, but in this paper, Friewald adds to a critique of the Fourth as an amendment that regulates government access to information that an individual knows to be impervious, or believes is totally secure from interception. Not about protecting that which no one but the subject knows. Not about protecting those things which are contained only within the confines of the house. She says the issue is one of power, of focusing on the nature of investigatory techniques.

2001 article in the NY Times by JEFFREY ROSEN

The promise of America is a promise that we can escape from the Old
>World, a world where people know their place. When we say we are
>fighting for an open society, we don't mean a transparent society --
>one where neighbors can peer into each other's windows using the
>joysticks on their laptops. We mean a society open to the
>possibility that people can redefine and reinvent themselves every
>day; a society in which people can travel from place to place
>without showing their papers and being encumbered by their past; a
>society that respects privacy and constantly reshuffles social
>hierarchy.
>
>The ideal of America has from the beginning been an insistence that
>your opportunities shouldn't be limited by your background or your
>database; that no doors should be permanently closed to anyone who
>has the wrong smart card.

Solove: DIGITAL DOSSIERS AND THE DISSIPATION OF FOURTH AMENDMENT PRIVACY

The protection of privacy requires an “architecture of power.”19 This architecture represents
the way that law structures social relationships. The law creates and
constructs the world we live in by shaping an individual’s relationships
with other individuals, institutions, and the government. Ideally, the law
should establish an architecture of power to maintain an appropriate
balance of power in these relationships.

Protecting privacy through an architecture of power differs from
protecting it as an individual right.

According to Dewey, the individual is inextricably
connected to society,187 and rights are not immutable possessions of
individuals, but are instrumental in light of “the contribution they make to
the welfare of the community.”188 The problem with viewing rights in
purely individualistic terms is that it pits individual rights against the
greater good of the community, with the interests of society often winning
out because of their paramount importance when measured against one
individual’s freedom.
Viewing privacy as an individual right against government
information-gathering conceives of the harm to privacy as emanating from
the invasion into the lives of particular people. But many of the people
asserting a right to privacy against government information-gathering are
criminals or terrorists, people we do not have a strong desire to protect. ... Why should one individual’s
preference for privacy trump the social goals of security and safety? This
question is difficult to answer if privacy is understood as a right possessed
by particular people.
In contrast, an architecture of power protects privacy differently and is
based on a different conception of privacy. Privacy is not merely a right
possessed by individuals, but is a form of freedom built into the social
structure. It is thus an issue about the common good as much as it is about
individual rights. It is an issue about social architecture, about the
relationships that form the structure of our society.

Freiwald adds to this conception with her formulation of the Fourth Amendment as essentially a normative evaluation. This is one with which I agree. Of course, the very question of reaonsableness is the one of normativeness of LE, but this is just giving normative weight to the other side, expanded beyond the narrow individual right.

The real challenge for the paper is the question of whether the test Friewald proposes works.

hidden
intrusive
indiscriminate
continuous

based on video surveillance in private places. Public places, same issue, though perhaps less intrusive, but because of Katz formulation, not REOP in that which you knowingly expose, not a search. Test is not based in current jurisprudence

Not sure this is a test in the traditional sense of the word, series of adjectives. Not sure that these adjectives are the best or only ones that get at the describing the Big Brother relationship between individuals and society that we are trying to avoid.

But also not sure that it is workable.

Susan says that courts have problems grappling with the normative aspects of the Fourth Amendment, as well as the empirical ones. Is this formulation any better of a guide? Is this any more principled. The questions she asks, what is the nature of surveillance, its susceptibility to abuse, the need for judicial intervention to avoid these wrongs, these are subtle, technology dependent and evidence dependent.

Perhaps these are questions better answered by the political process, but legislatures. I always hesitate to leave things to legislatures. While some have argued they do a better job, I have not found them to be more flexible, quicker or wiser.

Friewald adds to the effort by recontextualizing what the Fourth is about and by identifying characteristics of surveillance that we most want to monitor. I think work remains to be done of how to categorize this in a way that's workable for law enforcement to guide its behavior and for courts to reliably and consistently adjudicate.

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.

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.

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