Federal Understanding: How we got where we are today

In order to understand how Article 1, Section 7 can be used to advance computer-related privacy law into the 21st century it is helpful to review where we are, and how we got here. Fourth Amendment protections, as articulated by the US Supreme Court (as well as many state courts) has traced a parabolic path that begins with physical-place based interpretations, reaching a high point that exchanged the physical limitations of privacy for an abstract view of privacy, finally, more recently, falling back down to a physical place-based interpretation. Olmstead v. U.S., 277 U.S. 438 (1928) marks the place-based viewpoint. In, Berger v. New York., 388 U.S. 41 (1967), the arc reached what may have been it highest point, defining privacy in way that most closely resembles common sense. Next, Katz v. U.S., 389 U.S. 347 (1967), smoothed and flattened the curve, promulgating the idea that “the Fourth Amendment protects people not places.” Finally, the arc of the curve has begun to turn downward in Kyllo v. U.S. 533 U.S. 27 (2001), where the U.S. Supreme Court, faced a use of advanced technology that tested the prior boundaries of the Fourth Amendment. The cases, Olmstead, Berger, Katz, and Kyllo will be reviewed briefly to highlight the US Supreme Court’s effort to describe the contours of the Fourth Amendment in the face of new technology. In addition, U.S. v. Miller 425 U.S. 435 (1976) will be reviewed because of its important role of strip Fourth Amendment protections from business records placed under the control of third parties.