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Welcome To America, You Are Now Being Recorded

By Ben Currier

Americans’ highly valued right to privacy still exists, but the reality of privacy from undue governmental snooping is being eroded.

The modern ideals of privacy rights were first formally established within Manola v. Stevens and subsequently modified by subsequent Supreme Court decisions.1 Unfortunately, recent Supreme Court decisions have helped to significantly reduce privacy inside and outside the home. In the last 20 years technology, current court decisions and legislation have profoundly reduced privacy rights. The current trend in American jurisprudence allows police and law enforcement to peer into the lives of average American citizens as never before.

Historically, the Fourth Amendment provides the outer limits for allowable investigatory conduct, requiring searches and seizures to be reasonable and based upon probable cause.2 Under the Supreme Court decision, Katz v. United States, the court declared that, to be protected under the Fourth Amendment, first, a person must exhibit an actual (subjective) expectation of privacy, and second, that the expectation must be one that society is prepared to recognize as "reasonable."3 The subjective expectation of privacy requirement generally turns on the degree to which the defendant takes affirmative measures to protect privacy interests.4 If no expectation is present, or has been invaded, then there is not a "search."5 On the other hand, when there is a reasonable expectation of privacy, then the Fourth Amendment comes into play and a warrant is necessary to conduct the search.6

What Have You Done to Protect Your Privacy Lately?
Many of the subsequent Supreme Court cases have considered actions the defendant took in order to determine if he or she had a reasonable expectation of privacy.7 These cases imply that the defendant must take action in order to have a reasonable expectation of privacy to protect him or herself from the search.8 Additionally, the Court has based its decisions on how commonplace certain search technology is in society. The Court has developed the criterion that if the technology used was commonplace, then there is a diminished expectation of privacy for the defendant and the police do not need a search warrant.9 This interpretation has led the Court to determine that the police’s use of helicopters, airplanes, binoculars, flashlights and other forms of technology commonly found within society can be used to perform a warrantless search, as the prevalence of these items in society has led to a reduction in a defendant’s expectation of privacy.

Overall, these cases help to further reduce an individual’s privacy within his or her home. Not only are citizens expected to take action to preserve the privacy of the home, but as technology becomes more common and more frequently used, the police may increasingly, and lawfully, infringe on privacy in the home and elsewhere.

New electronic technology has recently allowed the government to lawfully record, listen and intrude on individual privacy in ways that were previously not possible. The telephone was one of the first communication devices that the Court considered when determining privacy expectations. Courts have determined that the police may record the numbers dialed on a telephone because the defendant had "voluntarily" turned the information over to a third party (the phone company).10 According to the Court, information which an individual makes available to a third party no longer contains a reasonable expectation of privacy.11

The Court has determined that users of cordless telephones do not have a justifiable expectation of privacy for their conversations.12 The Court has stated that an individual should know from the instructions that the communication occurs over FM waves and can be intercepted using minimal and readily available technology.13 These holdings further allow the government to infringe on individual privacy: the government may record cordless phone conversations because the communication is voluntarily exposed to the public and can be intercepted by anyone using minimal technology. This surveillance is permitted without a warrant or court supervision.

High-Tech May Equal Low Expectations for Privacy
Moreover, the Court seems to suggest that citizens’ technical sophistication determines whether or not they have a reasonable expectation of privacy. Apparently the Court has determined that the rights to privacy are not guaranteed and that the individual should possess the technical know-how to understand exactly how a cordless phone works, therefore taking preventative measures to minimize any interception.

Congress has initially regulated surveillance of the telephone and other electronic technologies in Title III of the Omnibus Crime Control and Safe Streets Act of 1968.14 With oral communications, the statute only protects conversations in which an individual has a "reasonable expectation of privacy."15 With wire communications however, there is no such limitation, as this statute does not include wire communications, such as communications over the internet including email and instant messenger.16 While this statute is placing a general prohibition on the interception of electronic communications, the statute contains provisions that allow government officials to conduct wiretap surveillance under the authority of a court based on probable cause.17

In 1986, Congress passed The Electronic Communications Privacy Act of 1986 (ECPA) which modified Title III through a series of amendments, finally regulating the pen register, and pen trap and trace devices—more commonly known as wiretapping devices and attached to "land line" telephones.18 Specifically, this amendment provides that to lawfully use a pen register or trap and trace device, law enforcement officers need only certify to the court that the information likely to be obtained is relevant to an ongoing criminal investigation.19 With this statute there is no statutory suppression remedy for the ECPA, thus any electronic communications that are acquired in violation of the statute are admissible unless the search also violated the Fourth Amendment (which gives citizens protection against unreasonable searches and seizures).20 If information is gathered illegally or the government works outside of the statute or set protocol, and receives information that is not authorized, this information is admissible unless it violates the Fourth Amendment.

Most recently, Congress passed legislation in the wake of the terrorist attacks, allowing the government and law enforcement to infringe upon individual privacy as never before.21 In addition to specific procedures for dealing with terrorists and terrorism, the Patriot Act codified the application of pen register and trap and trace procedures to all Iinternet communications, encompassing all law enforcement efforts, not just those related to terrorism.22 Essentially, the lesser requirements for police searching telephone dialing or addressing communications are now being applied to the internet. Specifically, the requirements for certain searches are so minimal that almost zero evidence must be presented for the surveillance to be authorized. The government or anybody else could wiretap the internet and collect any non-content information it wished, without restriction.23 Under the Patriot Act the government can now obtain a pen register order instead of a Title III warrant to conduct its surveillance.24

With regard to the content of the internet communication, the government must still obtain a Title III super warrant.25 Under this statute, unless an exception to the statute applies, the government must obtain a pen register order to obtain "dialing, routing, addressing, and signaling information," and must obtain a Wiretap Order to obtain "contents."

Some Emails Belongs to the Sender, Recipients, and Everyone Else
Courts have held that an individual has a limited expectation of privacy in email communications.26 Further, while not specifically addressing email or internet privacy, Courts have relied upon Smith v. Maryland for guidance.27 Taken literally, the Smith ruling gives the government the power to monitor every piece of electronic mail that is sent through the internet since this communication travels to and through third parties to reach the recipient.28 Courts have recently applied this disclosure principle to the internet and email, holding that an internet user cannot enjoy a reasonable expectation of privacy in non-content information sent to an internet service provider (ISP) because the user has disclosed the information to the ISP.29

All in all, the use of email falls into the middle of the Fourth Amendment spectrum, entailing a diminished expectation of privacy. On one hand, the use of email is generally subject to the same Fourth Amendment protections found with telephones.30 The sender of email can reasonably expect that the contents will remain private and free from police intrusion absent a search warrant supported by probable cause.31 On the other hand, "chat" messages, received emails, forwarded emails, and emails divulged to third parties, afford no reasonable expectation of privacy.32

As a result of recent Court decisions, citizens have less privacy when they communicate via the internet and email. If the communication is determined to be merely addressing information, then the government can record this information and use it for prosecution or future surveillance. If the communication is determined to be content-based, the government might even be able to record this information under certain circumstances. Through internet and email surveillance the government is now able to peer into the homes and private communications of average individuals. Email and internet communications can notify the government about the type of activities that are occurring in the home, the quantity of information transferred between people, and possibly even peer directly into the home through certain types of internet technologies.

Future Looks Bright for Law Enforcement
We should not be surprised to have even less privacy in the near future. There are several new devices being developed and used to aid law enforcement in conducting visual surveillance. Specifically, handheld devices are being developed to penetrate walls up to eight inches thick,33 or otherwise track human heat signatures inside buildings. Make-believe devices that only exist in blockbuster films are truly being developed and utilized against average citizens to find criminal conduct. While Courts may initially require a warrant to use such devices in a search, as they device becomes more common in society, these devices may be used without having to obtain a search warrant.

The future of internet privacy is also uncertain, and has the potential to be further diminished. As stated, the courts have held that there is minimal privacy in regards to internet and email communications. Under the Smith analysis, all internet and email communications could be available for government surveillance and use, because they are voluntarily disclosed to third parties. Additionally, under other precedents, the Courts have determined that an individual does not have privacy unless he or she has taken actions to demonstrate that he or she has a reasonable expectation of privacy. Following the Courts’ analysis in regards to the internet, individuals must take certain actions to show that they have a reasonable expectation of privacy. These actions may include or even require the use of encryption.

Particularly troublesome is the Court’s implication that an individual’s technological sophistication determines his or her level of privacy. Essentially, an individual must take serious steps and clearly understand his or her intentions in order to possess or retain privacy. As such, in an age where technology continues to become more sophisticated and complex, the average citizen cannot possibly preserve personal privacy.

While absolute privacy in modern society is simply unattainable unless one lives the life of a total recluse, an individual definitely expects that his or her personal communications will remain reasonably private. Unfortunately, as long as the United States Supreme Court continues to base decisions on ideal expectations, instead of what is perceived reasonable by the average citizen, Fourth Amendment privacy protections will continue to be diminished. Moreover, if courts follow the standards set by the legislature regarding technology, an individual’s privacy in and around the home will be nonexistent.

Personal Privacy Headed Toward Extinction?
Court precedent has established the basis for future reduction in personal privacy. As long the courts and legislatures do not affirmatively and purposely protect individual privacy, Fourth Amendment protections will continue to dwindle until personal privacy becomes nonexistent.

Looking to today’s perception of privacy, including the outrage involved with the presidential actions in wiretapping average American citizens, the truth of privacy law may be in fact more grim. Under the current legal precedent, legislative direction, and executive action, the ideals of privacy law may be no more than that, ideals.

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1N.Y. Sup. Ct. 1890
2U.S. Const. amend. IV
3Katz, 389 U.S. 347
4Id.
5Katz, 389 U.S. 347
6Katz, 389 US at 350
7See United States v. Jacobsen, 466 U.S. 109 (1984); See Florida v. Riley, 488 U.S. 445 (1989); See Dow Chemical Co. v. United States, 476 U.S. 227 (1986).
8See note 7 supra.
9See Ric Simmons, From Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment to Twenty-First Century Technologies, 53 Hastings L.J. 1303 (2002)
10Smith v. Maryland, 422 U.S. 735, 744 (1979).
11Smith, 442 US at 744-45.
12See Tyler v. Berodt, 877 F.2d 705, 706 (8th cir. 1989); see also McKamey v. Roach, 55 F.3d 1236, 1239-1240 (6th cir. 1995)
13Id. supra note 80.
14Title III, Pub. L. No. 90-351, 82 Stat. 212 (1968) (codified as amended in 18 U.S.C. §§ 2510 et seq.)
15See Id. at § 2510(2).
16See Id. at § 2510(1).
1718 U.S.C. at § 2518 (The judge may issue the order upon a finding that “there is probable cause for belief that particular communications concerning that offense will be obtained through such interception.” 18 U.S.C. § 2518(3)(b)).
18Id.
19Id.
20See 18 U.S.C. § 2520(d), see also From Katz to Kyllo article also (cite to the article).
21Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. No. 107-56, § 105, 115 Stat. 272.
22Id. §216.
23so long as the device did not pick up any “content, it did not violate the Wiretap Act.” 18 U.S.C.A. § 2510(8)(West Supp. 2002).
24See Internetinternet Orin S. Kerr, Internetinternet Surveillance Law After the USA Patriot Act: The Big Brother That Isn’t, 97 N.W. U.L. Rev. 607, 624 (2003) (The government may now spy on web surfing of innocent Americans, including terms entered into search engines, by merely telling a judge anywhere in the U.S. that the spying could lead to information that is ‘relevant’ to an ongoing criminal investigation’).
2518 U.S.C.A. § 2510(8)(West Supp. 2002).
26Id.; See also United States v. Monroe, 52 M.J. 326 (C.A.A.F. 1999) (stating that e-mails sent to work or through the Internetinternet itself, absent contractual guarantees, experience a diminished degree of protection from the Fourth Amendment.)
27Smith v. Maryland, 422 U.S. 735 (information voluntarily disclosed to a third party has no privacy).
28See Ric Simmons, From Katz to Kyllo: A Blueprint for Adapting the Fourth Amendment to Twenty-First Century Technologies, 53 Hastings L.J. 1303, 1342 (2002).
29See Guest v. Leis, 255 F.3d 325, 335-36 (6th Cir. 2001)(finding no expectation of privacy in non-content information disclosed to ISP); see United States v. Hambrick, 55 F. Supp.2d 504, 508-09 (W.D. Va. 1999), af’d 225 F.2d 656 (4th Cir, Aug. 3, 2000); see also United States v. Kennedy, 81 F. Supp.2d 1103, 110 (D. Kan. 2000). (Generally, courts have held a reasonable expectation of privacy in content information that is sealed away from the network provider, but does not retain such protection in information disclosed or openly visible to the provider).
30See United States v. Charbonneau, 979 F. Supp. 1177, 1184 (S.D. Ohio 1997).
31Id.
32See Id.; see also Hoffa v. United States, 385 U.S. 293, 302 (1966)
33Amy Miller, Kyllo v United States: New Law Enforcement Technologies and the Fourth Amendment, 51 U. Kan. L. Rev. 181, 198 (2002).