Fourth Amendment for the Internet

Federal Cases: Olmstead v. United States, 277 U.S. 438 (1928)

2007-04-22T00:00:00.000-07:00

Olmstead came out of the Federal District of Western Washington. Olmstead and several others were charged and convicted of number of crimes related to their large, prohibition era, liquor smuggling and distribution operation. As part of a Federal investigation agents placed wiretaps on the telephone lines going into Olmstead's downtown Seattle office, as well his home, and other co-conspirators homes.

Olmstead is a fascinating case. Most readers will be familiar with it, as it is often in casebooks and articles, presented as an example of the “bad-old days” when telephone wiretapping was not considered protected by the Fourth Amendment. The majority opinion is interesting in that it provides brief capsules of several prior cases where the court found the Fourth Amendment did apply to when some non-tangible physical intrusion occurred in the course of obtaining evidence without a warrant. Each supporting case, outlined in the majority opinion, described circumstances where government agents physically entered a constitutionally protected space, such as a home, or office. Where government agents seized physical items, such as, papers and records, without a warrant. Chief Justice Taft, writing for the majority, used the these cases that describe circumstances that were within the protection of the Fourth Amendment – to argue that it did not protect against wiretaps installed without “breeching” the target's home or office (or other protected space). The petitioner argued by analogy that since postal mail was protected, outside of the home or office, physical trespass was not required to trigger Fourth Amendment protections. Taft remarked that, even though the Fourth Amendment protected mail, it did not proscribe wiretaps. Taft found that a telephone wiretap was not a search. “There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.” Olmstead. Even though prior cases had argued to “liberally construe [the Fourth Amendment] to effect the purpose of the framers of the Constitution in the interest of liberty.” Taft retrenches back to a more limited view refusing to “[enlarge] ... the language [of the Fourth Amendment] beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight.”

Even though Olmstead operated to limited the protections of the Fourth Amendment it is considered to be source of much of the modern view of the Fourth Amendment. This comes from a modern appreciation of Justice Brandeis’s dissenting opinion, which many today, consider to be a very progressive analysis of privacy and the Fourth Amendment:

The progress of science in furnishing the government with means of espionage is not likely to stop with wire-tapping. Ways 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. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. 'That places the liberty of every man in the hands of every petty officer' was said by James Otis of much lesser intrusions than these….Can it be that the Constitution affords no protection against such invasions of individual security? (Footnotes omitted.) Olmstead (Brandeis dissent).

Federal Understanding: How we got where we are today

2007-02-14T22:13:00.000-08:00

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.

How Work Gets Done on the Internet

2006-12-08T21:27:00.000-08:00

The way computers use the Internet to work together is of particular importance when developing an understanding the application of privacy law to the Internet. The key point has already been stated, computers on the Internet work together to process and transfer data. An example will help illustrate how computers on the Internet work together. Imagine a person in Chicago, Illinois, who wants to order a book for a friend’s birthday using the Internet. In this case, the person chooses to buy the book from Amazon.com. So the person will direct her web browser to show her the Amazon.com online bookstore by typing ‘http://www.amazon.com’ into his web browser. Nearly instantaneously, our shopper will see Amazon.com’s online bookstore appear in her web browser window. Simple. However, behind the scenes a lot happened. The shopper’s computer sent a packet of information out onto the Internet consisting of a destination address (amazon.com), a source address (the IP address of the shopper’s computer), and the message (send me the online bookstore web page). Ultimately, Amazon.com’s computer(s) in Seattle, Washington received the message and sent a return message to our shopper containing data so the web browser on her home computer could display the online bookstore. As she worked her way through the online store, each time she clicked her mouse a similar transaction was made between her computer and Amazon.com’s computers.

Someone unfamiliar with how the Internet works would be comfortable analogizing these transactions as each computer sending postal mail, or telegraph messages between each other. After all, each communication has a destination address and a source address, and some information contained in the body of message, like regular mail. However, between the shopper’s home computer and Amazon.com’s computers, are dozens of other computers on the Internet that receive and process the information packets. Communication between computers on the Internet is not point-to-point. There are many intermediary computers that hand off the message to each other in a loosely coupled chain. The message gets between the sender and destination by way of an ad-hoc “bucket-brigade” of computers that pass the message along.

Now, here is where the regular mail analogy breaks down, each computer in the delivery “bucket-brigade” can read the content of the message, as well as the addressing information. In the past very few computer in the chain would trouble themselves with contents of message packets. However, in this age of malicious computer worms and viruses, the intermediary computers are more likely than not to peek at the contents of messages to determine if their payload is safe.

Electronic mail (e-mail) works similarly. The raw data is transferred through the Internet via a bucket-brigade of intermediary computers. However, because E-mail is a specialized service, there are additional special purpose computers dedicated to processing e-mail. These computers can be thought of as local post offices – collecting e-mail messages until the recipient can retrieve the message. Several “e-mail servers” can work together storing and forwarding e-mail until the message gets to its ultimate recipient. Each intermediary e-mail server can choose to scan the contents of the email for viruses and other harmful payloads.

The way the Internet transfers data, including e-mail, has important implications with respect privacy. Because “all” information commonly sent through the Internet is touched, scanned, handled, and read by third-party computers unknown to the average user.

Domains

2006-12-04T21:55:00.000-08:00

Computers on the Internet are organized into hierarchical groups, or collections. Such collections are called domains. A detailed description of how Internet domains operate is not important for the purposes of this paper. However, the domains have a human readable name used to identify a computer or service that is on the Internet. E.g., amazon.com, seattleu.edu, are Internet domains used by Internet computers to find computers providing Amazon.com, Inc.’s electronic commerce offerings, and Seattle University’s website, respectively.

In July 1994 there were only a few university and government computers forming the Internet, defining a minimal amount of Internet domains (less than a 100). As of July 2005, there were at least 400,000,000 identifiable Internet domains. Internet Domain Survey, Internet Systems Consortium (http://www.isc.org/index.pl?/ops/ds/ last accessed November 12, 2005).

These four hundred million Internet domains each represent, at least one, and possibly, more than a 1,000,000 computers. For example, comcast.net is a single Internet domain that has millions of individual home users associated with it. Whereas, garagecraft.net has only twenty or so computers connected to the Internet.

Identity on the Internet

2006-12-03T16:16:00.000-08:00

Contrary to what many people believe, each computer on the Internet has a unique, traceable address, or identity. Modern computers on the Internet communicate to each other using the Internet Protocol, or IP for short. As such, each computer has an IP Address that is used by the computers to find each other. A computer on the Internet may not have a permanent address but it will have a traceable address. Non-permanent addresses are IP Addresses that have been issued from a central computer.

The Internet

2006-11-28T12:30:00.001-08:00

The Internet is our cyberspace. The Internet is a collection of computer networks that are all connected together. Computers connected to the Internet can provide services or utilize services, and usually they do both. Computers on one side of the world can make requests of computers on the other side of the world. The application most people are familiar with is the World Wide Web, and its associated web pages and web sites.

Computers and the Internet: Privacy’s Brave New World

2006-11-25T08:56:00.000-08:00

All Constitutions, Federal and State, have been tested by the advance of technology. Many of the technological innovations over the years could not have been imagined by the original authors our Constitutions. Nevertheless, Courts are required to apply their respective Constitutions to circumstances and situations that occur only because of new technologies.

Computers and the Internet are two of the many new technologies that together have changed how much of the world communicates, stores information, finds information, and conducts business. “[T]otal interconnectedness of human beings through computers and telecommunication without regard to physical geography.” William Gibson, Neuromancer, Ace Science Fiction, 1984.

Next, I will describe some attributes of the Internet to help the reader appreciate the challenges to the law this new technology presents.

A Common Understanding of Privacy

2006-11-23T08:46:00.000-08:00

Though lawyers and judges, alike, may not appreciate it much, people know what privacy means. Ask a non-lawyer what privacy means and they will likely come up with a definition similar to these:

Privacy:

1 a: the quality or state of being apart from company or observation: SECLUSION b: freedom from unauthorized intrusion (one's right to privacy)
Merriam Webster Online Dictionary

The condition or state of being free from public attention to intrusion into or interference with one's acts or decisions.
Black’s Law Dictionary (8th ed. 2004).

Non-lawyers likely believe that their mail is private; they believe that their e-mail is private; they believe that their bank statements are private; and depending how much they know about the USA Patriot Act, they probably believe that their library records are private. This may seem obvious, but I believe it is critical for lawyers and judges to remind themselves of what privacy means in the “real-world.”

I believe that where the Law’s understanding of privacy differs from the citizenry’s view privacy, the public’s trust and confidence in Law is eroded. This is one reason why lawyers should work to make the Law’s view of privacy consistent with the citizenry’s view.

Introduction to Privacy

2006-11-22T10:27:00.000-08:00

Most Americans believe that privacy, to one degree or another, is an inherent right. While there may be disagreements among persons as to the breadth, scope, and source of the right of privacy it is clear that they believe in such a right. The average person, no doubt, has a “gut feeling” of what is private and what is not. They can easily identify whether something should be considered private. Unfortunately, the same cannot be said for judges and lawyers. At least this is the conclusion one can come to after reading how the US Supreme court and others have struggled to define privacy.

Courts have had difficulty dealing with advances in technologies that challenge legal formulations and tests regarding privacy. Lately, the emergence of computers and the Internet as common fixtures of society have continued to push the current state of privacy jurisprudence to its extents. In this paper I will make an attempt to examine: how the current privacy law has developed in response to advancing technologies; where the Federal interpretation has gone astray; and how Washington State’s constitution, can be used to move the law of privacy closer to something that approaches how the persons subject to such laws, actually understand privacy.

The Issue

2006-11-22T10:26:00.000-08:00

How can Washington State’s perspective on privacy be used to illuminate the path towards a Federal understanding of privacy that makes sense in the age of computers and the Internet?