Defense attorney and blogger Rick Horowitz has posted an extended two-part response to my new law review article, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010). His posts are here:
Horowitz’s major objection to my approach is that he opposes “technology neutrality” as a basic principle of applying the Fourth Amendment to the Internet. As I explain in my article, the basic goal of technology neutrality is to develop Fourth Amendment principles that roughly replicate the function of the Fourth Amendment offline in the online environment. Put simply, the Fourth Amendment should do for cyberspace what it does for realspace.
Horowitz disagrees. In his view, the Supreme Court has gotten the Fourth Amendment horribly wrong in realspace: Its protections are not nearly strong as they should be, reflecting decades’ worth of constitutional mistakes. He argues that the goal of applying the Fourth Amendment should be to be true to the real Fourth Amendment, which (as best I can tell) he sees as imposing a warrant requirement for essentially every step the government takes, a position he sees rooted in the Fourth Amendment’s textual protection of “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Horowitz writes:
Ultimately, the problem with keeping the Constitution — and thus the Fourth Amendment — alive today is not to extend some near-dead version of it to what is believed to be another new and necessary arena of governmental intrusion into the lives of the citizens whose liberties it was formed to protect, but to recognize that the damn thing is barely holding onto life as it is, and to revitalize it.Kerr’s suggested approach fails to recognize this. Kerr’s constitutional amnesia assumes there is nothing wrong with the destruction of the Fourth Amendment — in fact, he does not even recognize it has been destroyed. Instead, he ratifies its wounds and suggests furthering the damage by extending its lack of protection to a new arena.
In response, I think Horowitz’s argument is less about applying the Fourth Amendment to the Internet than it is about the different question of applying the Fourth Amendment in the initial case of the physical world. As a result, I’m not sure my article and his response are necessarily in conflict.
That may sound weird at first. Certainly, if you read Horowitz’s posts, it sounds like his views conflict with those in my article. But my article is really about the conceptual problem of translating privacy rules developed for physical space to a communications network. The key issue is how you make the physical-space-to-communications-network conversion. I’m really not that concerned in this article with what the particular rules are that are being translated. If you want to change those rules, I could change a few pages of the article just to adjust. The article would otherwise be the same.
At bottom, I think Horowitz and I are interested in two very different questions. I’m interested in developing a theory of applying the Fourth Amendment in response to changing technology, and then applying that theory to the new case of the Internet. In contrast, Horowitz is interested in using the unanswered question of how the Fourth Amendment applies to the Internet to establish a sort of beachhead for how he thinks the Fourth Amendment should be applied. Given those two very different goals, it’s not surprising that we look at the issues so differently.
Glen Hein says:
As a software engineer and a citizen, I’m interested in searches of online data, so I will read your full article. Since I’m not a lawyer, I was wondering if you could help point in the right direction to learn more about what is considered a reasonable search and what is an unreasonable search.
April 29, 2010, 12:23 amRick Horowitz says:
First, let me say that I’m pleasantly surprised you’re paying attention to anything I have to say. I told someone just the other day that I may be out of my league arguing with you.
Having said that, though, I have to disagree with you about our respective positions — at least a little bit.
I do agree with what you had to say about the beachhead.
On the other hand, I think you skipped over my real reasons for disagreeing with you.
First of all, in either meatspace or in cyberspace, the problem remains the same: the Constitution was meant to create a government with significant limitations; the Fourth Amendment (and later the Fourteenth) added further limitations. But the general constitutional limitations were long ago shrugged off, with hardly a whimper (thereby showing the anti-federalists to be preternaturally prescient). The Fourth Amendment, after a post-Civil-War expansion and a promising renaissance under the Warren Court (the latter being highlighted in your comment on my blog), has since suffered the death of a thousand cuts from various court rulings, most notably from the USSC. It is time to establish a beachhead, somewhere. Let the Internet be the place, if that’s what it takes to get people to see how badly things have gone.
Secondly, though, and more importantly, I don’t see anything in your current response that addresses my major criticism of your approach. Your restrictive view of the foundation of the Fourth Amendment (i.e., that it aimed solely at general warrants or writs of assistance) misses the real point. Certainly there is no denying that general warrants and writs of assistance were the particular forms of the insults the Framers had in mind when they formulated the Fourth. The forms, however, were just that. It was the insult that mattered. And I’m not talking about (or at least not just talking about) respect. The Framers were concerned with a government that might, to use a modern colloquialism, “poke its nose in where it didn’t belong.” The power of government was to be limited because the government had a limited purpose. And that purpose neither included, nor necessitated, monitoring the foundation of its raison de etre. (Sorry, I don’t know how to add diacritics in blog comments; imagine they’re there.) The goal was a free — as in unfettered, liberated, we-can-make-our-own-choices-within-the-limits-of -the-Hobbesian contract — People.
But your writings — and I confess to having only recently discovered how important (i.e., influential) your writings appear to be, so that I’ve not yet read all of them, but as I’m just a lowly defense attorney I hope this will be forgiven — do not seem to give place to any of this. You appear to think general writs and writs of assistance were the actual targets when they were merely the manifestation of the target that appeared at that point in history. The real target was the arbitrary exercise of power by those who occupied accidental positions in society such that they could control others.
Additionally, you ignored my complaint that your suggestion appears to be aimed at leveling the playing field. Law enforcement can — if they’re in the right place at the right time — observe certain things or events that occur in public spaces. But the Internet has allowed a lot of things to happen in private spaces without the need to transit public spaces. In the past, these things had to transit public spaces at some point, or they couldn’t really happen at all. Your “technology neutrality” is meant to re-level the playing field by “at least” giving law enforcement access to information that does not move through public spaces, when that same information could (not would) have been discovered in the past when it had to move through a public space.
But the problem here is not just that leveling the playing field is an illegitimate endeavor. Your proposal actually goes a little beyond leveling the playing field. In meatspace, actual officers have to be in the right place at the right time to get the information you propose they be allowed to have. The technology of the Internet means some machine can collect all that information for them, even though no officer could possibly be present to make the observations herself. Thus, it does more than simply level the playing field; it tilts things in favor of law enforcement, providing a monitoring system that surely would — were there really such a possibility — have our forebears spinning in their graves faster than a bit could travel from San Francisco to…South San Francisco.
Since I am a practicing criminal defense attorney, my time for thinking of these things and writing about them is limited. (If you can think of a way I can make a living doing this, feel free to propose it.) After all, I have a prelim tomorrow for which I have to finish preparing. So I haven’t even gotten to write about the Apple iPhone 4G fiasco yet. I have, however, read some of what you’ve written on it.
Suffice it for now to say that I disagree that our views are consistent.
While you were more accurate on the technicalities concerning contraband versus “crime” than my friend Scott was, I think the spirit of his comments on that were definitely more consistent with how the Framers would have argued the point than were your comments.
So…meatspace, cyberspace — however you want to slice it, as I said, I have to respectfully disagree with you that our views are not in conflict.
But, again, thank you for bothering to pay attention to me. I hope I have not been disrespectful of you and since you are significantly more influential than me, I hope our conversation will cause you to rethink the question of your narrow focus of general writs/writs of assistance and the lack of actual neutrality in your “technology neutrality” position.
April 29, 2010, 1:21 amOrin Kerr says:
Rick,
Thanks for commenting here. You’re right that I’m not responding directly to your argument in my main post. But that’s mostly because I didn’t think your argument responded directly to mine: Your argument is on a different point than mine, and my interests here are in the topic of my article more than your general view of the Fourth Amendment.
Here are a few thoughts directly on your view, though. I am not a trained legal historian, but my best sense of the history is that your interpretation very likely reads a lot more into the Fourth Amendment than the Framers intended. Much of the problem is that the historical record of what the Fourth Amendment was designed to mean is distressingly sparse. We can read the major criminal law treatises on the common law of search and seizure — Blackstone, Coke, Hale, and Hawkins — to get a sense of what the common law prohibition against unreasonable searches and seizures was. That was the law that the Framers saw themselves as adopting, as best we can discern. But that law is itself very sparse and dealt only with a few discrete situations like the standards for making an arrest. Legal historians vary wildly in their interpretations of what the original practices were that the framers wanted to adopt.
Unfortunately, we know a remarkably small amount about the law that the framers were trying to adopt (even assuming the framers knew that law themselves). So as much as I admire originalism, I find that Fourth Amendment originalism often morphs into some other theory of interpretation that waves the banner of originalism but isn’t really originalist — too often, it’s a person’s own personal theory of what the constitution should mean, expressed as if it were an originalist reading. For that reason, I’m very cautious about originalist theories of the Fourth Amendment such as the one you suggest.
April 29, 2010, 2:01 amOrin Kerr says:
(Oh, and as for influence, one of the great things about blogging is that online we’re all just, well, bloggers. I’m happy to discuss these issues with you regardless of whether you’re the Dean of Yale Law School, a solo defense attorney, or anyone else.)
April 29, 2010, 2:08 amAnotherAnon says:
Orin Kerr,
Your OP appears to suggest that Horowitz’s argument is less about conceptual translation and more about ‘what oughts’ because his preferred 4A balance in cyberspace is less like the balance in realspace. This seems to me to embody your own assumption that the 4A balance in cyberspace should be like the balance in realspace. Consequently, you interpret Horowitz’ argument that the cyberspace balance should be different as saying that the realspace balance should be different.
You also seem to view your argument as being neutral with respect to particular rules (i.e. regardless of what the realspace 4A balance is, the cyberspace 4A balance should mirror it). Horowitz’ response seems to be that, while nominally neutral, this tacitly but effectively favors/endorses implementing the current/forseesable realspace balance in cyberspace. (After all, neutrality generally favors the status quo.)
[I do think his argument focuses on realspace 4A 'what oughts' to an extent which, whatever their merit, tends to distract from your initial question of developing a 4A framework for cyberspace. Now if he is following the argument 'cyberspace should mirror what realspace is or ought to be', the focus on realspace 'what oughts' is understandable. I would like to suggest however that this in not the only objection he could make.]
In my opinion, whether or not an objection like his amounts (as you seem to contend) to a sort of prescriptive originalism/revisionism vis-a-vis the realspace 4A balance depends on the analogical parity between realspace and cyberspace. If cyberspace is like realspace, then you and he are probably justified in arguing that the cyberspace balance should be like the realspace balance (however this is conceived). Conversely, if substantial disanalogies exist, then conceptual translation becomes (to some degree) a matter of interpretation. I’m taking the position that substantial disanalogies do exist, and that the respective interpretive positions of Mr. Horowitz and yourself reveal preferred outcomes. You focus on analogical similarities (supporting the view that the cyberspace balance should be like the realspace balance); he focuses on distinctions (supporting a cyberspace balance that is different from the realspace one).
If substantial disanalogies between realspace and cyberspace exist, then one can no longer convincingly argue as a matter of conceptual translation devoid of additional considerations that concepts derived from one domain should as a matter of course be applied to a different domain. I am thus skeptical that conceptual translation alone can provide an adequate theory of the 4A in cyberspace without embodying additional considerations (deciding how precise the relation between concept and fact should be, developing/modifying concepts in response to new facts, arguing policy considerations, etc.). If this is so, leaving these considerations unsaid may be undesirable. I am hesitant to ascribe any of these considerations to you without being more familiar with your work, but it does seem that (at least implicitly) your theory has the effect (as Mr. Horowitz pointed out in his blog post) of supporting the same realspace/cyberspace 4A balance despite different facts (whether or not this ultimately strengthens or weakens 4A protections is up for debate):
April 29, 2010, 2:56 amOrin Kerr says:
AnotherAnon,
Thanks for your comment. I believe I address that argument in the paper: check out the part where I address objections to the theory on pages 1031-38, especially the “cyberspace is different” section.
April 29, 2010, 3:19 amDavid Schwartz says:
Fortunately, they used small words with perfectly ordinary meanings.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
What this means is quite simple — if you can so that a search or seizure objectively unreasonably intrudes on your security in persons, houses, papers or effects, then you have shown that that search or seizure is prohibited by the Constitution. It also contains a prohibition against general warrants, presumably as an extra precaution in case someone felt that they were reasonable.
The originalists tend to think that “reasonable” means what the framers would have believed reasonable at the time. But that’s an utterly absurd interpretation as I’ve argued in detail elsewhere (including on this blog) many times.
The only sensible reading of “reasonable” is “objectively reasonable”.
April 29, 2010, 3:24 amOrin Kerr says:
David Schwartz writes:
David, either the words of the Fourth Amendment are not as simple and clear as you say, or else you have a level of genius that runs circles around everyone else.
April 29, 2010, 3:32 amDavid Schwartz says:
Actually, there’s a third alternative — that people don’t like the simple and clear meanings of the words and concoct elaborate obfuscatory theories to dodge their plain meaning. It’s this simple — if a search or seizure interferes with security in persons, houses, papers, or effects in an unreasonable way, then it is prohibited. The test is objective. You would have to go out of your way to make the simple words mean anything else, and I refuse to do that.
Of course there’s a whole discipline of how the Constitution has been interpreted by the courts from decades of finding ways to get the results they wanted. (Sometimes for good, sometimes for evil.) But let’s not pretend the meaning of the words isn’t 100% perfectly clear.
Not that there aren’t cases where it’s not and where there can be legitimate disputes over what was really meant, but this is not one of those cases. Unreasonable=prohibited. That’s what 4A says.
April 29, 2010, 4:30 amSara says:
So, your simple reading is that the 4A is only concerned with the government intruding upon interests in property, (i.e., an individual’s security in houses, papers and effects) and physical security (person)? What property interest is there in a bit? Is a bit an effect?
April 29, 2010, 4:37 amDavid Schwartz says:
A bit is always manifest as some kind of physical distinction. That physical distinction is precisely akin to differing colors on a piece of paper. (And would be literally covered by the word ‘effects’.)
I understand “persons, houses, papers, and effects” to be an attempt to cover the scope of things one would reasonably have a privacy interest in. The failure to include data was not because the founders didn’t intend 4A to cover data but simply because it didn’t occur to them that data could take a form that wasn’t included.
April 29, 2010, 4:43 amSara says:
Privacy? Your simple reading says nothing of privacy.
April 29, 2010, 4:49 amDavid Schwartz says:
What do you think “security in papers” means? And why else would you want to restrict searches in addition to seizures?
If you think I’m claiming that my few paragraphs above are a complete analysis of what 4A covers, no, it’s not. I’m just saying the basic structure is that it’s saying that searches and seizures must be objectively reasonable. (Not that the founders would have considered them reasonable, but *objectively* reasonable.)
I’m not claiming to fully explain every detail about the fourth amendment or that there’s some simple mechanical test that will tell you whether 4A prohibits something or not. Nothing works like that.
April 29, 2010, 4:51 amSara says:
Security in papers means that your property interest is secure and that the attendant depredations to their physical security, which happen during search and seizure does not happen. At least, that’s the simple reading you originally offered.
April 29, 2010, 4:59 amDavid Schwartz says:
I understand protection from unreasonable searches to protect privacy interests and protection from unreasonable seizures to protect property interests. Where did I say that security in papers meant any kind of property interest? Claiming that “security in papers” is protection against physical degradation strikes me as obviously absurd.
I may or may not be right about this (and as far as I know, never made any specific claims about what that part meant), but it has nothing to do with the point I was making earlier, which was that protection against “unreasonable” intrusions can only plausibly mean objectively unreasonable ones.
(Just as “due process” does not mean process the framers would have considered due, but must mean that showing that some process is objectively due is sufficient to show that one may not be deprived of it.)
April 29, 2010, 5:03 amSara says:
Destruction of property is the ultimate invasion of a secure property interest. The only thing absurd is your claim of a simple reading. Your peculiar understanding is irrelevant to a simple reading.
April 29, 2010, 5:08 amBrett Bellmore says:
Destruction of property is the ultimate invasion of a secure property interest, but ‘papers’ are a special sort of property, and the government violates the security of your “papers” as much by reading them, perhaps more, as by destroying them.
I will say, though, that “objectively unreasonable” seems to me a very shaky concept.
My own particular hobby horse in respect to the 4th amendment is, of course, the progressive emptying of one of the core functions of the warrant: Proving to the subject of the search that the officer really DOES have the right to conduct it, and thus must not be impeded. It’s my understanding that in early America, the subject of a search WAS entitled to resist, if not shown the warrant. Am I wrong about that?
April 29, 2010, 7:48 amRepayo says:
After reading Kerr and Horowitz, I am more persuaded by the latter. Haha sorry so called professor.
April 29, 2010, 8:08 amPersonFromPorlock says:
Sara, leak some classified information you happen to gain access to and you’ll find out the government takes the security of its papers quite seriously – even if you do nothing to the papers themselves except read them.
April 29, 2010, 8:27 amDavid M. Nieporent says:
You do understand that this provides us with precisely no useful rule, right? What is “objectively unreasonable”? All you’ve done is say that the 4th amendment is not unclear or difficult to understand because it clearly means X (which itself is unclear and difficult to understand).
Asserting something really loudly is not the same as proving it. In any case, you’re mistaken; originalists think that “reasonable” means what “reasonable” would have been generally understood to mean at the time.
April 29, 2010, 8:40 amSara says:
All irrelevant. I did not say destruction was the only way to injure property interests (only the ultimate). If you read someone’s papers, without their permission you have injured multiple property interests — dominion, control, and use, being among them.
April 29, 2010, 8:52 amOrenWithAnE says:
Would that it were so (I really mean that). Instead, the same State legislatures that ratified the Constitution also had sodomy laws, adultery laws, fornication laws, blasphemy law, obscenity laws, blue laws and a host of intrusions in to “where the government doesn’t belong” (at least by modern standards).
Now, the interaction of the 14A with this States is complicated, but you cannot impute to the founders this modern view of liberty.
Indeed. English Common Law was “knock and announce”, not “not and submit to verification by the homeowner”:
Same in the States:
Again, notice.
April 29, 2010, 9:11 amStephen Lathrop says:
I’m surprised the discussion gets this far without anyone mentioning the profound ambiguity in “reasonable.” Would that be “reasonable” from the point of view of what the government intends to accomplish, or from the point of view of the private party defending against a search? It can’t be either one entirely, can it?
April 29, 2010, 9:18 amTamerlane says:
I can’t resist suggesting an alternative phraesology “in meatspace or in metaspace”.
April 29, 2010, 9:19 amAnon321 says:
(This colloquy sort of reminds me of some of the debates Prof. Kerr has had on the VC with co-blogger Prof. Barnett. In his blogging and scholarship, it seems to me that OK often starts from the position that he’s taking the law as it currently exists as a given, without opining on whether the law is normatively correct or whether it comports with any particular jurisprudential or interpretive theory. He then attempts to argue — or sometimes predict — how the law should or will be applied to new facts or scenarios. Certain interlocutors — like Barnett and Horowitz — seem to criticize OK for taking the law as a given, as though by not staking out a normative position he is implicitly endorsing current doctrine as correct. That strikes me as an unwarranted inference to draw.)
April 29, 2010, 9:27 amJoe T. Guest says:
The notion of establishing a cyberspace beachhead for a revitalized, expansive 4th Amendment is romantic and appealing, but as we become increasingly reliant on internet infrastructure for managing our lives and public critical infrastructure, it invites disaster.
Everybody here is focused on preserving the privacy of emails and thinking about the individual sending and receiving email as the target of government scrutiny, but emails are just one communications protocol on the internet. There is a lot of traffic between routers and servers and individual appliances (personal computers, handheld devices, meatspace critical infrastructure managed using an internet connection) that is not email that contains security threats, and emails themselves are sometimes used to launch disastrous cyber attacks that eventually cost millions, to billions of dollars to stem. The nature of the attacks has been growing exponentially more serious and costly over the last decade, and a major problem is that commercial antivirus software tends to have trouble coping with brand new, powerful threats – some of which are email-based but many of which attack systems in other less predictable ways.
I’m thinking about initiatives like SmartGrid, which would at least put the national grid online, and possibly homes and businesses. Power to your home and business, and the local stoplights and everything else, would at times be controlled by distant computers. Also vulnerable are the vast stores of privacy information contained in corporate and government websites, not to mention the economic infrastructure of the internet; cyber bank fraud has become an enormous problem.
I don’t think this precludes having fairly robust protections for personal email communications, but if you want to advance individual rights effectively in the long run you’ll need to think about how to address the role of law enforcement in securing the internet generally, because big civil liberties wins are easily enough reversed following disasters. Hamsterdam was eventually viewed as politically untenable, right?
April 29, 2010, 9:50 amDavid Schwartz says:
I think I make it pretty clear what I am and not claiming to do.
For one thing, I am rejecting entirely out of hand that it matters one bit what the framers would have considered to be reasonable. There is simply no way to plausibly read 4A to mean “what we currently consider reasonable”. That is, I am rejecting the form of originalism that self-contradictoraly asserts that we should understand the Constitution to mean what the framers meant by it even in a way they clearly didn’t mean. (As if they would have said, “Yes, I see your argument that the blogs are a form of Press, but alas you made this argument to me too late, and thus 1A doesn’t protect blogs. If only you had made it to me before we wrote 1A.”)
I don’t think “objectively unreasonable” is really that unclear or difficult to understand. Yes, people will disagree over what is or isn’t objectively unreasonable, but that is true of anything.
It is precisely the same with due process. It means that if one can show that process is in fact due, then one may not be deprived of it. Yes, determining whether a particular process is or is not due may be a complicated affair, but what the clause says is quite simple and easy to understand — process that is in fact due may not be withheld. It’s very simple, and it makes perfect sense.
This is the same thing. Searches and seizures must be reasonable. It means precisely what it says.
That said, of course, we can argue endlessly over whether a particular search is or is not reasonable, and we need to develop cases on point and so on. I’m not saying we don’t need case law to understand what is or is not reasonable — but I am saying that objective reasonableness is what 4A is trying to assure.
Stephen Lathrop: I think it has to be a balance. And a 4A violation only found when the unreasonableness is manifest.
April 29, 2010, 10:23 amAnderson says:
OK often starts from the position that he’s taking the law as it currently exists as a given, without opining on whether the law is normatively correct or whether it comports with any particular jurisprudential or interpretive theory
“Often” could be “almost always,” but yeah. It is much more useful to lawyers to hear about what the law is, not about what it “should” be.
It makes practical sense to extend existing law to cyberspace — that is what judges typically do with novel facts, try to bring them within the scope of precedents.
Whether that’s how cyberspace *should* be treated (and I tend to think it isn’t) is a policy issue, and as Anon suggests, Prof. Kerr’s application of current legal principles to novel facts should not be mistaken for a policy argument.
April 29, 2010, 10:51 amOrin Kerr says:
Prof. Kerr’s application of current legal principles to novel facts should not be mistaken for a policy argument.
At least not until my next article, presently sketched out but not yet written, in which I get more into the policy case for technology neutrality. ;-)
April 29, 2010, 11:25 amAnotherAnon says:
Thanks, will have a look.
Unless logic is sufficiently determinant for an argument about how the law should be applied to new facts to succeed solely on that basis (and this rarely seems to be the case), making such an argument would seem to entail “staking out a normative position”, would it not? It’s fascinating that lawyers seem to consider something a “normative argument” based not on whether it is in fact a normative argument, but on whether it conforms with existing law. The unconventional is “normative” and the conventional is “neutral”? (I can only imagine what feminists, critical scholars, etc. would say…)
The constitution is not a suicide pact, eh? Please explain how a hypothetically “expansive” 4A “invites disaster”. Neither criminal investigations or broad-based surveillance are likely to be effective in deterring or preventing the sophisticated criminal/government cyberattacks originating from foreign jurisdictions which constitute an increasing percentage of attacks generally and the most dangerous attacks particularly. The single most effective preventative strategy would probably be to assist in hardening domestic computer systems while providing incentives for businesses to guard against data loss and maintain up-to-date security measures. In terms of deterrence, international cooperation would be helpful (don’t expect the worst offenders to cooperate, however).
April 29, 2010, 11:29 amUrso says:
I think the disagreement goes to the very core of what it “means to be a law professor.” Law profs, especially writing law profs, tend to be far more interested in what the law should be than what it is. Which is fine, and law professors have made some great contributions to the legal field by writing articles about what the law should be.
At the same time, I think they have to at least acknowledge what the law is. I’ve read articles that practically say “The Supreme Court has wrongly decided every case up to and includiong Marbury v. Madison. So let’s ignore all that and start over from scratch.” Not exactly pragmatic, and lawyers-as-advocates tend to be an extremely pragmatic people.
April 29, 2010, 11:48 amOrin Kerr says:
AnotherAnon writes:
I think you misunderstand. For any normative legal question, there are dozens if not hundreds of possible variables — questions, approaches, and starting points that could alter the analysis. Each scholar decides to simply assume some variables, leaving them fixed, and then to provide an analysis for why the remaining variables should be assigned particular values under that set of assumptions. That is, all of us are assuming some things and then making normative arguments about other things based on those assumptions.
The difference between what I often do and what Randy or Rick does is just that we fix different variables. So for example, first-principles theorists usually start with a contested theoretical premise such as natural law or original public meaning originalism (the part that is fixed), and then work out what the doctrine should look like based on that premise (the variable). I tend to start with widely accepted existing law principles (the part that is fixed), and then make claims about the underlying mechanisms of those principles to show how they could be applies to new facts (the variable).
It’s not that one approach is normative and the other neutral. They are each taking some things as fixed and then making normative claims about other things. It’s just that we are taking different things as fixed and playing with different variables. It happens that I strive to avoid fixing variables that are themselves highly contested, whereas others do not, but that doesn’t make one approach “normative” or the other “neutral.”
April 29, 2010, 11:53 amAnon321 says:
To be clear, I didn’t mean to suggest that endorsing the status quo is neutral, while advocating for change is normative. My point was just that some people — OK frequently among them — start by saying something like “the state of the law is currently X; X may be right or it may be wrong; my purpose here is not to address that point, but to assume X and then make arguments from that assumption.” The decision to assume X for the purposes of an article should not be interpreted as a normative argument that X is correct or otherwise desirable.
It seems to me that criticisms like Barnett’s and Horowitz’s are really criticisms of OK’s scholarly agenda, rather than responses to his arguments. In other words, they’re basically saying, “You should spend your time criticizing existing doctrine, rather than making arguments from existing doctrine.” Which is fine, but something quite different from saying that the argument itself is flawed.
April 29, 2010, 12:27 pmSuperSkeptic says:
This is observant, and I agree that Professor Kerr “tak[es] the law as it currently exists as a given” or some such and then tries to work from there to figure out “how the law should or will be applied.” We all must do that, but the problem I observe, at times, is not that he is “implicitly endorsing the current doctrine as correct,” but that he seems to refuse to recognize whether the current doctrine even has a theory, and how that theory (or lack thereof) might affect what courts should or will do. I don’t think he “endorses” theories as much as he tries to avoid them.
Having just read Professor Kerr’s explanation of his approach, i’d re-phrase my statement from “problem” to “difference”. Thanks for the explanation, it is helpful.
April 29, 2010, 12:41 pmOrin Kerr says:
I don’t think he “endorses” theories as much as he tries to avoid them.
I would be more specific: I try to avoid highly contested theories. It’s trivially easy to assert a highly contested theory and proclaim it the right one, and then to argue from it to reach any result you want. I don’t really see the point in that. Further, if a theory attracts 1% of readers, and might, if things break just right, eventually attract all of 3% of readers, then I’m not that interested (except in a purely intellectual sense) in the theory. What makes law so interesting is that it’s not just about theory: It’s a real world practice, with tens of thousands of judges, millions of lawyers, and millions of cases every year. In my view, that world is too darn interesting to spend a lot of time on the 1% theories. Soon enough, we’ll all be dead and gone: I’d rather spend the time we have engaging with the world we have than imagining perfect worlds that will never be.
April 29, 2010, 1:28 pmChris Travers says:
But this gets us back to the idea of a reasonable expectation of privacy, right?
I.e. the fourth amendment comes into play when we subjectively expect privacy, and society is prepared to recognize this expectation as reasonable, correct (per Katz v. United States)?
This gets to some of my questions which involve whether it is possible that surveillance of public spaces could possibly be so comprehensive and intrusive as to be unreasonable searches. Cell phone location data becomes a major beachhead in this question and it seems that the third circuit, based on the recent oral argument, may indeed consider such a question. Furthermore even the government’s approach in oral argument there was to suggest that searches of public transactional space in this area could conceivably becomes so intrusive as to violate Karo and Knotts (I think it’s interesting here that Orin, in relying heavily on the Smith pen register case in his view of this data seems to suggest a weaker 4th Amendment than the government prosecutors who at least seem open to the idea that tracking a cell phone into a closed building could violate the 4th Amendment).
April 29, 2010, 1:35 pmNickS says:
A recent case involving 4A and the internet (United States v. Ahrndt) fits right into this. The government contends that having an open WiFi router in your house and having shared folders publicly accessible on a computer on that router does not confer Fourth Amendment protections due to the range of the router extending past the house, stating that it’s like having an open door and a “Open House” sign on your lawn and contraband in your living room.
I disagree. First, the wireless signal is not visible to the naked eye, requiring specialized equipment just to detect, which takes it into the realm of Kyllo v. U.S. (use of IR cameras as a search).
Further, the information is not being broadcast a’la a radio station as the government contends. It requires that the officer use a computer to detect the signal, broadcast a request to the router for information, receive that information and broadcast a request to connect to the network, then request information from the computer on that network. A better analogy would be to have an unlocked door on your house. A police officer cannot legally walk up to that door, check to see if it is locked, open it, enter, open a drawer, and find contraband without a warrant, even if the door and drawer are visible from a public vantage point (with no contraband in sight). Similarly, though your phone lines are likely visible from a public vantage point, it does not allow a government agent the right to tap into it without a warrant. The lack of a lock does not preclude 4A protection, though it does afford a lower expectation of privacy.
The same might (stress on the “might”) go for peer-to-peer file-sharing. While a website may be public, it requires that one purchase a domain name and host the files on a public server, similar to purchasing commercial public property and filing all the paperwork to open a “meatspace” business, which would likely be considered a public place. Peer-to-peer is more of a closed system, similar to a party in a house. If the owner of the house allows police in, does that allow a police officer to compel a partygoer to empty their pockets?
April 29, 2010, 1:45 pmChris Travers says:
As a note, one could read Katz as endorsing the same sort of “inside vs outside” analysis that Prof. Kerr seems to endorse. However, that’s not really what the court said, namely that the amendment protected people rather than places. Furthermore, Justice Harlan’s concurring opinion has become one of the major defining opinions in reasonable expectations of privacy:
Unlike Kerr, I would argue that pen register programs are not proscribed by the 4th Amendment not because they access “non-content” but rather because we expect these records to be kept, used, and reported to us for billing verification purposes. Consequently, we don’t really expect privacy or recognize such an expectation on others as reasonable.
But what about the fact that an iPhone has a GPS receiver in it that can be remotely activated? Certainly that’s not “content” but it is certainly intrusive. Merely remotely activating the GPS receiver would certainly not count as a search, but would using that receiver to locate the iPhone? (The reason for this is to track lost or stolen phones….) This is the sort of thing that raises far more profound Constitutional problems…..
April 29, 2010, 1:46 pmOrenWithAnE says:
But that would be a double-reverse phraseology, “meatspace” itself have been backed-out of “cyberspace” despite obviously preceding it by a few billion years.
But it’s my understanding that Orin (correct me if I’m wrong) does broadly approve of current 4A doctrine.
April 29, 2010, 2:04 pmChris Travers says:
I have a hard time accepting this. It seems more akin to a swap meet with the shared files being in plain view. Is there any expectation of privacy when you share something to the public? Can society recognize that expectation as reasonable?
April 29, 2010, 2:20 pmOrin Kerr says:
Oren,
I don’t have the strong wish to bulldoze existing law. But that does not mean I think that existing law is “correct.”
April 29, 2010, 2:33 pmNickS says:
The issue as I see it is the computer’s role as a container rather than an actor (in the legal definition) makes it more of an opaque drawer or box that can be opened rather than a clear and/or open view. The computer is not, as commonly inferred, broadcasting “Hey I have these files” but rather responds to a request with information (often without the consent or knowledge of the owner). It’s a murky grey area. Yes, the container is in public view, but so is the glovebox on a convertible. Simply being in public view does not remove expectation of privacy, especially for government agents executing a search.
What are your thoughts on the first example with the WiFi?
April 29, 2010, 2:38 pmSbard says:
@NickS: The computer may not be broadcasting “I have these files”, but it is broadcasting its existence and the availability of access. When I ask my computer to connect to a wireless network, there is a handshake protocol. I ask your electronic butler if I can come in, and if the network is unsecured, he’ll say “Yes”. So one might contend that a wireless network owner’s decision to leave their network unsecured effectively amounts to assent to access the contents. This may also tie into the whole “internal” versus “external” perspective issues that Prof. Kerr has discussed in the past. I guess this brings to mind another question of computers and the law which is, “Can a computer system be considered to be an agent of its owner?”
April 29, 2010, 3:02 pmNickS says:
The analogy I like is a paper on the seat of a convertible versus a paper in the glovebox of a convertible. The seat is in plain view (“open field”). The existence of the glovebox and usually the state of the lock (locked or unlocked) and the means of access (latch) are broadcast to anyone standing outside the car, also making them in plain view. It would be a trivial matter to trip the catch and expose the contents of the glovebox, but would it constitute a search? Likely, yes.
Would it be unreasonable to assume that such a search would require a warrant or would it fall under the auspices of Terry (despite that applying to public safety concerns)? Would the trivialness of the act of opening play a part? What if a corner of the paper, belying no aspect of the contents or legality of the paper, were to be poking out of the glovebox? What if the officer believed there to be illegal papers in the glovebox? Does the owner have an expectation of privacy in an unlocked glovebox in a convertible parked on a street? Is that expectation of privacy general or does it only come into play when a government agent is involved?
To determine the contents of a folder or a file within that folder on a computer requires conscious, physical action on the part of the person connecting (keystrokes, etc). The question, as you put it, is does that action constitute an “opening” of an inanimate container or a search consented to by the owner through a third party?
These questions demand answers!
April 29, 2010, 3:37 pmDavid M. Nieporent says:
Where you’re being clear you’re not making sense; where you’re making sense you’re not being clear.
I don’t know what objectively unreasonable means — or, perhaps what I should say is that I don’t know what you mean by “objectively unreasonable.” As opposed to subjectively unreasonable? Since that latter phrase doesn’t really make sense as a concept, I think all you’ve done is added a redundant word but no actual information.
Ah. So the phrase “due process” is “quite simple and easy to understand” because it means “process which is due”?
That’s about as sensible as saying that the word aghkjdsahfasfjaslkness is “quite simple and easy to understand” because it quite obviously means the quality of being aghkjdsahfasfjaslk.
And the only difficulty — really, a minor one — is figuring out what aghkjdsahfasfjaslk means. But, hey, as you say, “that is true of anything.”
Wow. So when it says unreasonable searches are not allowed, it means that searches must be reasonable. Thanks! I’m glad you’ve refuted the many billions of people who were denying that tautology.
April 29, 2010, 4:20 pmDavid Schwartz says:
You denied that tautology yourself: “originalists think that “reasonable” means what “reasonable” would have been generally understood to mean at the time”. Or do you think “reasonable” means the same thing as “would have been generally understood to be reasonable in the late 1700s”?
April 29, 2010, 5:23 pmJoe T. Guest says:
AnotherAnon – care to give me a technical basis for this conclusion? Broad based surveillance is *precisely* one of the more effective ways that broader consensual internet security works, and how major threats that cause large traffic spikes (such as a rapidly spreading botnet or a major dedicated denial of service attack) are detected.
Once you can show me at least some evidence to support your conclusory premise I’ll be happy to get into why I think using the 4th Amendment to move the realm of internet security beyond government reach would be a mistake.
April 29, 2010, 5:44 pmOrenWithAnE says:
Thanks for the clarification. I guess I had framed the question in a different way — supposing the law were bulldozed already and you were elected to reconstitute it, I would have imagined you’d implement something quite similar to what we have now.
April 29, 2010, 6:56 pmAnotherAnon says:
I stand corrected. Thanks for the informative response.
I think we need to clarify some things. First, you’ll note I said “sophisticated” cyberattacks. By that I meant something like the APT attacks, not botnets and DDoS. While I have little doubt that the government could detect the threats you mention, I question the need for this given the cooperative and (mostly) private identification mechanisms already in place. I also question whether this would constitute “broad-based surveillance” or implicate 4A concerns, since many techniques of this sort (HIDPS, honeypots, known botnet C&C, backscatter analysis, etc.) are passive and noninvasive. Furthermore even the more active techniques tend to be signature based and privately operated on private networks. Perhaps it would be enlightening if you described the government measures you envision vis-a-vis attacks of this sort. Also, if you’re going to ask for evidence in support of claims, it’s only fair that you adhere to the same standard. Accordingly, please provide evidence for the following:
Now as to why I think
Let’s start with an rudimentary description of the ATP attacks. Individuals working in sensitive companies, NGOs, governments are individually targeted with emails which appear to be internal. The customized malware payload is innocuous looking, low profile, and usually avoids typical malware giveaways. The frequency of successful attacks, internal post-discovery audits, and the durations before such attacks were discovered suggests that these payloads are rather difficult to detect pre-infection and (due to their design) are not particularly conducive to the development of proactive signature based profiles after discovery, since many of targets report frequent reinfection. If you don’t know what you’re looking for, the value of preventative surveillance declines considerably. Stolen data is encrypted and relayed to external recipients (both the originating and recipient machines tend to be located in countries which are not inclined to cooperate with US investigations).
Finally, if the Smart Grid does indeed have the vulnerabilities you allege in an earlier post (while unfamiliar with this topic I understand several security experts have voiced concerns), perhaps the appropriate response would be to not deploy a system that’s unready for prime time in the first place.
April 29, 2010, 8:07 pmOrin Kerr says:
I guess I had framed the question in a different way — supposing the law were bulldozed already and you were elected to reconstitute it, I would have imagined you’d implement something quite similar to what we have now.
I don’t know about that: It depends on how much freedom I would have to really change things. (I guess we’ll just have to wait and see when the law is bulldozed, I am elected to reconstitute it, and I am told the range of things I can change! ;-) )
April 29, 2010, 9:30 pmDavid M. Nieporent says:
Only for the federal government; for the states, the relevant date is 1868. But I’m not sure how you think that this is not objective.
April 29, 2010, 9:50 pmlosantiville says:
Orin,
It might help if you answered a basic question of 4th amendment meaning – Do you think that the CL and the original intent of the 4th required warrants and probable cause for “property, papers, and effects” in the custody of third parties.
I’m assuming Rich would say yes and I’m guessing you would say no, but I may be wrong.
I wonder how the other conspirators would answer the question.
The issue must have come up at common law and during the 19th century under the 4th.
April 29, 2010, 10:07 pmDavid Schwartz says:
I said that there’s a difference between “objectively reasonable” and “would have been considered reasonable by particular people at a particular time”. I did not say that the difference is not that the latter is not objective. (And it’s perfectly obvious what the difference is, isn’t it? For example, consider how you would prove something meets the former requirement versus how you would prove something meets the latter requirement.)
April 29, 2010, 10:08 pmRick Horowitz says:
Professor Kerr:
Wow. Lots of writing going on here. Not so much on the questions I raised. I wish I had time to keep up with all of it, but such are the travails of a working attorney: I spent the entire day running to various courtrooms, reviewing files and (today) renegotiating a contract critical to the short-term survival of my practice.
Anyway, I’ve decided that I should try to pursue a response to specific comments I found interesting by writing another article on my blog, which I hope to do over the weekend, if not sooner.
The two key things I’m not seeing are any response to my comment that your agenda seems to be more driven by a desire to duplicate exceptions in cyberspace that exist in meatspace, but in a way that ignores the rationale behind how those exceptions came to be and the fact that your motivation seems to aim at preserving entitlements for law enforcement carved out by erroneous rulings, by creating new fictive divisions amongst bits (I mean that almost literally) of data and designating some collections of bits as “non-content information” and others as “content.”
For some reason, it seems you think you’ve answered this and I disagree. Or you just dismiss me by saying we’re not talking about the same thing — and again I disagree. I thought I was clearly pointing out why, but instead I’m being misread as trying to argue for rolling back the clock to some earlier time. While I admit that I think the clock should be so rolled back, I understand that this is not an area which concerns your project; I understand that you’ve taken, as a given, accepting the way things are in the real world and then porting them to the virtual world, or cyberspace. I neither see the need for this, nor does it make sense to me. Wires, servers, databases, bits — even “clouds” — are all constituted by real objects in the real world. If the requisite probable cause is there to get at any of it, the requisite probable cause is there to get at all of it; if the requisite probable cause is not there to get at all of it, the requisite probable cause is not there to get at any of it. If it is, you seek and are granted a warrant; if not, you don’t get access.
Just because certain mistakes have been made in meatspace does not mean they need to be repeated in cyberspace. The rules of meatspace can be applied quite straightforwardly by remembering that all this nebulous data — whether you want to incorrectly designate it as non-content “information” (I still can’t see how you miss that irony), or as content — exists on real media, wires, etc. There are already rules that apply to real things. That some mistakes have been made with some analogous real things (such as to allow pin registers, for example) does not mean the same mistakes should be made because we think cyberspace (or, actually, law enforcement) needs it.
It still sounds to me like the problem is “Oh, my. Law enforcement can do these invasions on telephone calls, etc., but it’s not yet been worked out how they can do it on the Internet and it’s not fair to say they can’t have the same level of access to private information on the Internet so let’s decide what we’re going to give them.”
If you want to call that rolling back the clock, well, we just have no common ground. In that case, I just have to oppose you and hope that myself and the others who join me can talk some sense into the people who matter.
And, if not, then — as I’ve written before and even though I don’t really want this — maybe we’ll just have to await the next revolution, after which maybe we can try for another free Republic which maybe we can keep a little longer. Maybe this is why Jefferson reputedly said,
And also,
Anyway, as I said, I really can’t keep up volume-wise with all of you here, so I’ll have to read when I can and then, when it seems appropriate, try to use what I see here to help me organize my thoughts for more articles on my own blog.
April 29, 2010, 10:14 pmOrin Kerr says:
Rick writes:
Rick, my motivation is to maintain entitlements for both sides. That’s the entire argument of the paper. As for allegedly ignoring the rationale for how those entitlements came to be, I just think you’re wrong about the rationale for reasons discussed in the paper.
April 29, 2010, 10:24 pmOrin Kerr says:
I have looked for such cases, but never seen nor heard of any. Given that, I don’t think there was any common law or original intent on the question: I don’t know of any cases when it came up.
April 29, 2010, 10:27 pmDavid M. Nieporent says:
Well, no.
How exactly would you prove that something meets the former requirement (i.e., “objectively reasonable”)?
April 29, 2010, 10:56 pmDavid M. Nieporent says:
Can I just say that anybody who says “meatspace” is trying way too hard to be hip, and failing miserably?
April 29, 2010, 11:00 pmDavid Schwartz says:
The same way you would prove that something would have been considered reasonable to particular people at a particular time; however, the time would be now and the place would be wherever you are.
Objective reasonableness is a fairly common legal standard. It includes factors such as how critical the need is for what was done, whether there were less intrusive ways to accomplish the same goal, and so on.
I agree that it’s not a simple test. There’s no simple list of checkoff you can go through to determine whether a particular given act is objectively reasonable or not. We do violence to the Constitution if we attempt to turn it into simplistic recipes. Rights are scalpels, not clubs.
April 29, 2010, 11:18 pmSuperSkeptic says:
Professor Kerr,
Thanks for the response. It would probably behoove me to pay more attention to your scholarship, since you approach the law in the exact opposite way that I do: Theory is the only thing that interests me.
April 29, 2010, 11:18 pmRick Horowitz says:
It’s also possible you just didn’t read my posts and therefore didn’t pick up that I was aiming at something and that there is a future article addressing this which I have promised.
April 29, 2010, 11:25 pmOrenWithAnE says:
You can say it, but it’s really a regular part of the language at this point.
April 30, 2010, 1:22 amOrenWithAnE says:
My house is constituted of real objects. If there is PC to get a warrant, they can get a warrant. Otherwise they can fly over it with a helicopter, pull the trash, read the electric meter, station a squad car across the street (“the eyes, by the laws of England, cannot trespass”) and take pictures of people coming and going.
Then correct them in meatspace and Orin promises that his technological neutrality does not discriminate. As it is in meatspace, so it shall be in cyberspace.
Amen.
April 30, 2010, 1:31 amDenlen says:
| Orin Kerr says: “Rick, my motivation is to maintain entitlements for both sides. That’s the entire argument of the paper.” |
That seems an offhand but concise statement of the author’s fundamental view of the 4th Amendment (IMO)
In that view, the 4A itself is equally a specific Constitutional guarantee of government right (entitlement) to conduct reasonable searches and seizures… as it is a specific individual right against unreasonable government searches and seizures. A balancing (maintenance) of these two adjacent rights is properly a continual, evolving political and judicial process (e.g., cyberspace or TSA).
Citizens have rights, but the government also has rights… and supposed compelling needs.
Balance is therefore the key legal issue in adjudication of explicit individual versus non-explicit governmental 4A constitutional rights/entitlements (?)
April 30, 2010, 7:17 amDavid M. Nieporent says:
I don’t think so. I don’t think I’ve ever heard someone actually say the word, or write it seriously as the author appears to be doing. (I’m not saying the author invented it; I’m merely saying nobody uses it.)
Confirming my intuition, “cyberspace” gets 8.2 million hits on google. “Meatspace” gets just 90,000 hits. On Google, that’s like nothing. I just made up the word “dogspace” right now and got 68,000 hits.
April 30, 2010, 8:13 amOrenWithAnE says:
Among my peers (20-somethings, almost all in software/computer engineering or related fields) it’s ubiquitous.
April 30, 2010, 10:36 amChris Travers says:
Well, I am assuming for purposes of this argument that we are talking about programs which allow an individual to actually share specific files. I would say once you choose to share specific files, it’s like putting your marijuana plants in full view from the public street. Hence YOU are the actor, and the computer is just a method. You can see shared files as being in a transparent container in full view while non-shared files are not. Furthermore, this is MORE akin to being in public space because anyone else with a computer can observe that these files are shared than something like email headers are….
Now, that would preclude police from saying “there’s no technical difference to a backdoor program so once your computer is infected by BackOrifice, the 4th Amendment no longer applies” because the computer is not an actor.
April 30, 2010, 4:37 pmNickS says:
I think the problem at the core of this whole article is the lack of effective real-world analogues for electronic information and exchange. My problem is in the nature of the data exchange. Having something on your front lawn is not the same as sharing a file on the internet, unlike how the courts appear to view it (paraphrasing from several cases, “failure to control what is shared is similar to failure to close your drapes”. Someone connecting to a peer-to-peer network is not immediately knowledgeable about the contents of your computer; They would need to request that information from your computer.
The closest precedent I could find is California v. Greenwood, which would allow searches, but the analogy is still flawed as the materials in question are not relinquished until asked for by the government agent as opposed to entrusted to a third party first and willingly left out in public (the dissent in Greenwood stated that the garbage could not have been searched inside the curtilage or if in personal possession of the defendant in public).
The question to decide is if the computer is a door you left unlocked in case some friends (peers) stopped by, which is opaque but will easily allow inspection if it is opened, or a doorman at a party consenting to access by police even if you may not have invited them in as the owner of the house. The first is clearly a violation, the second usually passes muster in precedent but is still questionable in terms of who is capable of consenting to a search.
Another facet to consider is the ephemeral nature of the internet. Peer-to-peer networks have long been considered public areas in case law, yet there is an important distinction. In order to gain access, one usually must specifically and knowingly download specialized software and connect to the network, an act that might be inferred as buying into the social contract of the group. If the prevailing community standard is one of openness to other community members and privacy from government intrusion, similar to standards found on a commune or other closed close-knit communities, though your computer is not extensively closed to inspection by those connected to the network you could have an expectation of privacy where government agents are concerned.
May 1, 2010, 10:47 amChris Travers says:
May be somewhat true for Windows users (though I’m not sure how that’s relevant). What’s the social contract of installing Bittorrent in order to download Fedora Linux ISO’s? Indeed recent Fedora Linux comes with a bittorrent client installed by default.
However, assume this is a meaningful distinction…. Wouldn’t that mean that the FBI would require a warrant in order to have its agents join a group as part of the investigation? Wouldn’t that mean that undercover operations generally would have to be micromanaged by a magistrate judge?
I would much rather subject the matter to Justice Harlan’s (concurring) test in Katz v. United States and ask how much one REALLY expects files offered to the public to be private, and furthermore whether society was prepared to recognize such as reasonable. That frees this up from reasoning-by-analogy to some extent.
Also I’m not entirely sure that Kyllo supports the idea of a technology-neutral 4th Amendment. For example, I see nothing different in a technology-neutral world between videotaping or photographing a house in normal light vs with a FLIR set-up. The difference is the technology.
May 1, 2010, 1:45 pmNickS says:
If you load up a bittorrent client you are not automatically connected to a network like most Gnutella-like clients. You must have a torrent file obtained most likely through a publicly accessible tracker site. At that point you are connected to the peers and therefore that is when the contract is accepted. I concede that mere installation would not be acceptance much as buying a car does not subject you to traffic law until it used on a road.
Unfortunately, the social contract theory would only prevent warrantless physical search and seizure (consent once removed). The question (as I see it, so take it with a grain of salt) is whether any searches and seizures following the initial query can be used for probable cause or whether they exceed the scope of plain view.
Searching on peer-to-peer networks usually takes one of two forms, general or specific. The general search queries the network for files with a particular name or keyword and anyone possessing that file replies back with a confirmation that they do. The specific search queries a specific user’s computer for a list of files being shared. From reading case studies, government officers usually start with a general search and then perform a specific one on any computer that responds, often directly downloading files as evidence.
While the general search undeniably falls under the plain view doctrine are further, more invasive searches allowed without a warrant? Based on the general search, probable cause for a warrant would likely be accepted, and exigent circumstances would be a stretch (Arizona v. Hicks, 480 U.S. 321, People v. Eden, 615 N.E.2d 1224, People v. Wimbley, 731 N.E.2d 290). If an officer sees a pot plant in your window can they then open the window further and take some as evidence for a warrant?
May 1, 2010, 4:19 pm