A. Michael Froomkin

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Notes for Part IV, Sections B and C, and Conclusion

661. 588 A.2d 145 (Conn.), cert. denied, 112 S. Ct. 330 (1991). Back to text

662. See id. at 152. The Court did not decide whether the abutment was the defendant's home for Fourth Amendment purposes. See id. at 155. Compare Teryl S. Eisenberg, Note, Connecticut v. Mooney: Can a Homeless Person Find Privacy Under a Bridge?, 13 Pace L. Rev. 229 (1993) (arguing that a homeless person may be afforded an expectation of privacy in the area the individual reasonably considers "home" based on societal understandings of the privacy associated with a "home") with David H. Steinberg, Note, Constructing Homes for the Homeless? Searching for a Fourth Amendment Standard, 41 Duke L.J. 1508 (1992) (arguing that the reasonable-expectation-of-privacy inquiry is based on property interests, and concluding that a homeless defendant could not have a reasonable expectation of privacy in belongings left beneath a public bridge abutment). Back to text

663. See, e.g., Edward H. Levi, An Introduction to Legal Reasoning 1-3 (1948) (outlining the case method of legal reasoning); K.N. Llewellyn, The Bramble Bush 70 (1951) ("There was a view, and I suppose some hold it still, that law is made up of principles and rules. A master craftsman would be able to arrange them in one great hierarchical scheme."). Back to text

664. See, e.g., D. Marvin Jones, Darkness Made Visible: Law, Metaphor, and the Racial Self, 82 Geo. L.J. 437, 447-87 (1993) (applying an analysis of social and legal uses of metaphor to illuminate social construction and significance of race); Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371, 1382-94 (1988) (describing cognitive and legal functions of metaphor). Back to text

665. Winter, supra note 664, at 1383; see also Donald A. Sch”n, Generative Metaphor: A Perspective on Problem-Setting in Social Policy, in Metaphor and Thought 137, 137 (Andrew Ortony ed., 2d ed. 1993) (discussing the use of "metaphor" as both a kind of product and a kind of process by which "new perspectives on the world come into existence"). Back to text

666. Others have made this point before in the context of computers. See I. Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55 U. Pitt. L. Rev. 993, 996-1015 (1994) (distinguishing between problems such as defamation, for which existing legal categories work, and problems such as reasonableness of behavior in cyberspace, for which existing legal categories do not offer clear-cut solutions); David R. Johnson & Kevin A. Marks, Mapping Electronic Data Communications onto Existing Legal Metaphors: Should We Let Our Conscience (and Our Contracts) Be Our Guide?, 38 Vill. L. Rev. 487, 489-90 (1993) (arguing for a contract regime in cyberspace); Henry H. Perritt, Jr., Tort Liability, the First Amendment, and Equal Access to Electronic Networks, Harv. J.L. & Tech., Spring 1992, at 65, 95-113 (arguing that the common law of defamation should inform courts' treatment of tort claims arising out of communications on electronic networks); Henry H. Perritt, Jr., Metaphors and Network Law (Oct. 15, 1992), available online URL gopher:// chron/.papers/.files/Metaphors.and.Network.Law.txt (arguing that print shop, broadcasting, and telephone [**PAGE 861**]metaphors are inadequate, and proposing alternatives based on a tort system). Back to text

667. John Perry Barlow suggests that the development of the railroads provides a better metaphor for the growth of the Internet than does the information superhighway, because in both cases large private industries sought government-imposed standards and regulations that served to give early entrants commanding market positions. See John P. Barlow, Stopping the Information Railroad, available online URL html. Back to text

668. See Hinman v. Pacific Air Transp. Corp., 84 F.2d 755, 759 (9th Cir. 1936), cert. denied, 300 U.S. 654 (1937) (giving airplanes right of way over private property); Vincent M. Brannigan, Biotechnology: A First Order Technico-Legal Revolution, 16 Hofstra L. Rev. 545, 549 (1988) (noting that some new technologies, like railroads, did not require an adjustment in legal conceptions, whereas others, like the airplane, required fundamental adjustments); Brannigan & Dayhoff, supra note 52, at 27 (noting that the advent of air travel "required fundamental shifts in the nature of the right to property"). Back to text

669. See Michael J. Reddy, The Conduit Metaphor: A Case of Frame Conflict in Our Language About Language, in Metaphor and Thought, supra note 665, at 164, 165. Back to text

670. See id. at 189-201 (giving hundreds of examples). Back to text

671. Reddy argues that the conduit metaphor is dysfunctional because it obscures a reality in which the auditor/recipient of the communication must actively construct a new text with meaning in light of the recipient's own referents. See id. at 184-87; see also Roland Barthes, The Pleasure of the Text 3-67 (Richard Miller trans., 1975) [hereinafter Barthes, Pleasure] (posing questions about and offering commentary on a reader's finding pleasure in the text she reads); Roland Barthes, S/Z at 4 (Richard Miller trans., 1974) [hereinafter Barthes, S/Z] ("Our literature is characterized by the pitiless divorce . . . between the producer of the text and its user, [which leaves the reader] with no more than the poor freedom either to accept or reject the text . . . ."). See generally David Holdcroft, Saussure: Signs, System, and Arbitrariness (1991) (discussing signs as a semantic system). The validity of this critique is not at issue here; what matters for present purposes is the accuracy of the claim that the conduit metaphor is pervasive. Back to text

672. Because the message remains unreadable, there is no way to tell whether it was preencrypted with unescrowed cryptography. Back to text

673. See supra text preceding note 413. Back to text

674. This check does not detect preencryption of e-mail. See supra text following note 413. Back to text

675. See Chambers v. Maroney, 399 U.S. 42, 52 (1970) (applying the exigency exception to the warrant requirement to an automobile); Carroll v. United States, 267 U.S. 132, 153 (1925) (allowing an exception to the Fourth Amendment's warrant requirement in the case of movable vessels). Back to text

676. The ECPA presumably protects against the warrantless interception and recording of encrypted communications even when the public servants recording the message lack the capability to decrypt it. Otherwise, public servants would routinely be able to record encrypted messages and then decrypt them if they were later able to amass sufficient evidence to convince a judge to issue a valid warrant. Any other construction of the ECPA would make it almost a dead letter.

In this perspective, the Fifth Circuit's decision in Steve Jackson Games, Inc. v. United States Secret Serv., 36 F.3d 457 (5th Cir. 1994), is troubling but inapposite. The Fifth Circuit imposed a narrow construction on the ECPA prohibition against "intentionally intercepting" e-mails, 18 U.S.C § 2511(1)(a) (1988), to exclude e-mail communications residing on a computer bulletin board but not yet received by the intended recipient. In the Fifth Circuit's stunted view, an "intercept" can only occur if the communication is overheard during transmission. Id. at 461-62. The court held that the capture of an unread e-mail stored on a bulletin board is governed by the less stringent provisions of Title I of the ECPA, which covers the electronic storage of messages. See id. at 461-63.

The Steve Jackson decision is worrisome because it suggests that courts will interpret the ECPA narrowly. It is inapposite because the recording of an encrypted communication during transmission clearly falls under Title II of ECPA. See also id. at 462 n.7 (explaining that a search warrant would be required to obtain access to contents of a stored electronic communication). Back to text

677. 428 U.S. 543 (1976). Back to text

678. See id. at 558-67. Back to text

679. 496 U.S. 444 (1990). Back to text

680. See id. at 455. Back to text

681. The test originated in Brown v. Texas, 443 U.S. 47 (1979). Back to text

682. See 496 U.S. at 454. The original formulation of the test weighed the degree to which the procedure advances the public interest, but the Sitz Court appears to have lowered its scrutiny of this factor and to have looked instead to some evidence of effectiveness. See id. at 454-55. Back to text

683. See Brown, 443 U.S. at 50-51. Back to text

684. Cf. California v. Acevedo, 500 U.S. 565 (1991) (discussing the "automobile exception" to the Fourth Amendment). Back to text

685. See Kahn, supra note 6, at 549-50. Back to text

686. See, e.g., Farrington v. Tokushige, 273 U.S. 284, 298-99 (1927) (discussing the constitutionality of regulations aimed at foreign language schools); Yu Cong Eng v. Trinidad, 271 U.S. 500, 525 (1926) (same); Bartels v. Iowa, 262 U.S. 404, 411 (1923) (finding unconstitutional a state statute prohibiting the teaching of foreign languages in public schools); Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (recognizing a parent's right to determine the language to be spoken by her child); Yniguez v. Arizonans for Official English, 1994 U.S. App. LEXIS 37650, *30-*47 (9th Cir. Jan. 17, 1995) (amending 1994 U.S. App. LEXIS 34195 (9th Cir. Dec. 7, 1994)) (holding that Article XXVIII of the Arizona constitution, which requires that English be used for all official business, violates the First Amendment of the U.S. Constitution); Asian Am. Business Group v. City of Pomona, 716 F. Supp. 1328, 1330-32 (C.D. Cal. 1989) (holding that an ordinance requiring one-half of the space of a foreign alphabet sign to be devoted to English alphabetical characters violated First Amendment free speech rights and the Equal Protection Clause); see also Antonio J. Califa, Declaring English the Official Language: Prejudice Spoken Here, 24 Harv. C.R.-C.L. L. Rev. 293,[**PAGE 866**]330-46 (1989) (arguing that English-only laws violate the Equal Protection Clause); Donna M. Greenspan, Florida's Official English Amendment, 18 Nova L. Rev. 891, 908-16 (1994) (arguing that a lack of enforcement saves the constitutionality of Florida's Official English amendment, and warning that some day Spanish-speaking citizens might seek to use similar laws against English speakers); Joseph Leibowicz, The Proposed English Language Amendment: Shield or Sword?, 3 Yale L. & Pol'y Rev. 519, 542-50 (1985) (arguing that the English Language Amendment should be rejected because it embraces a pure form of Anglo-conformity and uses a language issue as a weapon against those already the objects of cultural or racial prejudice); Wendy Olson, The Shame of Spanish: Cultural Bias in English First Legislation, 11 Chicano-Latino L. Rev. 1, 23-28 (1991) (arguing that English-only laws stigmatize language minorities and violate their constitutional rights to equal protection and privacy); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 Minn. L. Rev. 269, 356-57 (1992) (asserting that official English laws should be subject to heightened scrutiny); Hiram Puig-Lugo, Freedom to Speak One Language: Free Speech and the English Language Amendment, 11 Chicano-Latino L. Rev. 35, 44-46 (1991) (arguing that English-only laws would be unconstitutional); Michele Arington, Note, English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & Pol. 325, 339-42 (1991) (arguing that official-English laws should be interpreted narrowly rather than as broad restraints on bilingual programs); Note, "Official English": Federal Limits on Efforts to Curtail Bilingual Services in the States, 100 Harv. L. Rev. 1345, 1352-56 (1987) (arguing that English-only laws violate the Equal Protection Clause and unconstitutionally limit the access of language minorities to the political process); Leo J. Ramos, Comment, English First Legislation: Potential National Origin Discrimination, 11 Chicano-Latino L. Rev. 77, 92-93 (1991) (arguing that language discrimination is facial discrimination deserving strict scrutiny); Carol Schmid, Comment, Language Rights and the Legal Status of English-Only Laws in the Public and Private Sector, 20 N.C. Cent. L.J. 65, 72-76 (1992) (analyzing issues raised by English-only laws). Back to text

687. I have been unable to find a single criminal case in which the government has attempted to force a defendant to translate her message. There are cases in which the government provides translations of an eavesdropped conversation and then in effect challenges the defendant to explain what is wrong with the government's incriminating rendition. See, e.g., United States v. Briscoe, 896 F.2d 1476, 1490-93 (7th Cir. 1990) (involving a translation from a Nigerian dialect). Similarly, some courts have held that parties cannot be required to translate foreign-language documents as part of civil discovery governed by the Federal Rules of Civil Procedure. See, e.g., In re Korean Airlines Disaster of Sept. 1, 1983, 103 F.R.D. 357, 357-58 (D.D.C. 1984) (denying a motion to direct Korean Airlines to provide English translations of Korean documents). The Supreme Court has held that in cases under the Hague Evidence Convention a federal court may require a party providing documents to provide translations as well as descriptions of documents. See Soci‚t‚ Nationale Industrielle A‚rospatiale v. United States Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 546 (1987). Back to text

688. See supra part III.A.2. Back to text

689. Dorothy E. Denning, Encrypted Speech Is Not Speech 1 (Jan. 16, 1994) (unpublished manuscript, on file with author). In addition to the items discussed in the text, Denning argues that all languages are capable of direct translation to all other languages without the intermediation of a third language, but that a ciphertext, which often consists of strings of ones and zeros, must first be decrypted to its plaintext before being translated into another language. See id. In an e-mail to the author, Professor Denning qualified her claim that encrypted speech "is not speech" by adding: "My conclusion was that encryption must be regarded as a manner of speech rather than speech (or manner of expression) in a more fundamental sense. This, of course, does not rule out its protection." E-mail from Dorothy Denning, Professor and Chair, Computer Science Department, Georgetown University, to Michael Froomkin (Dec. 7, 1994) (on file with author). Back to text

690. Denning, supra note 689, at 1-3. Denning also argues that all languages have syntactic malleability--that is, the ability to use semantic building blocks in different orders and combinations that produce meanings--but that ciphertext lacks this property because reordering the ones and zeros will usually produce gibberish. See id. Back to text

691. Because American English, like many languages, borrows heavily from other languages, this statement presupposes a very robust conception of the parameters of a living language. Back to text

692. See Denning, supra note 689, at 1-3. Back to text

693. In considering the extent to which ciphertext resembles speech protected by the First Amendment, I am not assuming that it is so protected. To invoke the First Amendment directly to resolve the constitutional status of ciphertext would be to beg the question that the invocation of the "language" metaphor is supposed to answer. The argument in the text seeks instead to use First Amendment cases to classify differences as relevant to whether a communication is protected speech or not. Back to text

694. See Texas v. Johnson, 491 U.S. 397 (1989) (holding that burning the American[**PAGE 868*]flag for expressive reasons falls under the protection of the First Amendment); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969) (holding that the First Amendment protects the wearing of an armband for expressive reasons); United States v. O'Brien, 391 U.S. 367 (1968) (finding that the First Amendment safeguards the burning of a draft card for expressive reasons); Stromberg v. California, 283 U.S. 359 (1931) (recognizing that the display of a red flag was protected speech). Back to text

695. See Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975). But see Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (qualifying Doran). Back to text

696. See Brown v. Louisiana, 383 U.S. 131 (1966). Back to text

697. See generally Barthes, S/Z, supra note 671; Holdcroft, supra note 671. Back to text

698. 114 S. Ct. 2038 (1994). Back to text

699. Id. at 2046. Back to text

700. Cf. Texas v. Johnson, 491 U.S. 397, 404 (1989) (stating that whether particular conduct is protected by the First Amendment depends on "whether `[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it[]'" (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974))). Back to text

701. Commentators disagree as to whether the First Amendment protects communications or communicative intent. Compare Frederick Schauer, Speech and "Speech"--Obscenity and "Obscenity": An Exercise in the Interpretation of Constitutional Language, 67 Geo. L.J. 899, 918 (1979) ("[A]ny rational justification for the principle of free speech requires both a communicator and an intended object of the communication.") with Melville B. Nimmer, The Meaning of Symbolic Speech Under the First Amendment, 21 UCLA L. Rev. 29, 36 (1973) ("The right to engage in verbal locutions which no one can hear and in conduct which no one can observe may sometimes qualify as a due process `liberty,' but without an actual or potential audience there can be no first amendment speech right."). Back to text

702. "Seen as a prosthetic device, the personal computer extends the limits of the individual human body, whether within the privatized microworlds of computer simulations, or through the interactive exchange of messages across global computer networks." Deborah Heath, Computers and Their Bodies: Sex, War and Cyberspace 1 (1992), available online URL gopher:// Heath.Deborah. Back to text

703. See supra text following note 468; supra text accompanying note 686. Back to text

704. The important qualifications to this statement, including regulatory searches, valid subpoenas, and searches with valid warrants appear supra part III.B. Back to text

705. A number of participants in the cypherpunks mailing list, notably cypher-[**PAGE 871**]punks' cofounder Eric Hughes, have argued in their postings to the list that cryptography can only become safe from regulation if it becomes ubiquitous. This analysis suggests that they are onto something. If nothing else, the push to provide ubiquitous and user-friendly cryptography could serve to shorten the "cultural lag," for court decisions defining the legal regime for a new technology often are made before the technology is well-understood by the public or judges. See Diane C. Maleson, The Historical Roots of the Legal System's Response to Nuclear Power, 55 S. Cal. L. Rev. 597, 617-18 (1982) (giving as an example of "cultural lag" the issue of nuclear power plant safety). Back to text

706. See Doe v. United States, 487 U.S. 201, 210 n.9 (1988) (analogizing to the forced production of a strongbox key). Back to text

707. 425 U.S. 391 (1976). Back to text

708. See id. at 409 (stating that the Fifth Amendment ordinarily protects against the compulsion to "restate, repeat, or affirm the truth of the contents of documents sought"). Back to text

709. See infra Technical Appendix, part A. Back to text

710. See 56 Crim. L. Rep. (BNA) No. 12, at 2023 (Dec. 21, 1994). Back to text

711. Id. at 2038 (emphasis added). It is difficult to see, however, how under the Fifth Amendment limited immunity could be given to the suspect without preventing the prosecution from using any information directly resulting from the use of the password. Back to text

712. Words frequently achieve the same effect with regard to the meanings they "carry," but that is not, one hopes, their primary purpose. Back to text

713. Arkansas v. Sanders, 442 U.S. 753, 764-65 n.13 (1979). What a kit of burglar tools looks like, or how its looks differ from an ordinary tool box's, the Supreme Court did not explain. Back to text

714. A safe on the move also resembles an armored car. If so, it is constitutionally unsafe, compared to the stationary safe, because there seems little likelihood of an armored car exception to the Fourth Amendment's automobile exception. See supra note 675 and accompanying text. Back to text

715. See California v. Acevedo, 500 U.S. 565, 575 (1991) ("Law enforcement officers may seize a container and hold it until they obtain a search warrant."). Back to text

716. See id. at 575 (stating that "the police often will be able to search containers without a warrant, despite the Chadwick-Sanders rule, as a search incident to a lawful arrest"). The prior rule recognized a privacy interest in luggage. See United States v. Place, 462 U.S. 696, 706-07 (1983) (citing United States v. Chadwick, 433 U.S. 1,[**PAGE 873**]13 (1977) for the proposition that persons possess "a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment"); see also United States v. Ross, 456 U.S. 798, 824 (1982) (expanding the warrantless search doctrine under Carroll v. United States, 267 U.S. 132, 153 (1925), to containers in cars upon probable cause); Arkansas v. Sanders, 442 U.S. 753, 764 (1979) (finding luggage to be a common "repository for personal items" inevitably associated with an expectation of privacy), rev'd sub nom. California v. Acevedo, 500 U.S. 565 (1991); United States v. Chadwick, 433 U.S. 1, 13 (1977) (stating that movable luggage has a greater reasonable expectation of privacy than automobile), rev'd sub nom. California v. Acevedo, 500 U.S. 565 (1991). Back to text

717. Or at least testimony from which a court might infer consent. See, e.g., United States v. Cox, 762 F. Supp. 145 (E.D. Tex. 1991) (concluding that by unlocking the combination lock of a suitcase, the defendant consented to a search); United States v. Miller, 442 F. Supp. 742, 748 n.5, 753 (D. Me. 1977) (stating that the fact that an officer told the suspect that a lock would be opened with or without his help did not vitiate consent); cf. supra note 366 and accompanying text (suggesting that the intelligence of criminals is not to be overestimated). Back to text

718. How brief is unclear. Ninety minutes is too long. See Place, 462 U.S. at 709-10 (stating that the Court has "never approved a seizure of the person for the prolonged 90-minute period involved here"). Back to text

719. Id. at 707 ("We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure."). Back to text

720. On whether the LEAF is inside or outside the message for ECPA purposes, see supra notes 330-36 and accompanying text. Back to text

721. Once one considers movement, the "safe" begins to look like another conduit metaphor, in which meanings are placed into a safe/cipher that "holds meaning" and then "conveys" the meaning to another. Back to text

722. 471 U.S. 386 (1985). Back to text

723. See id. at 394 & n.3. In Soldal v. Cook County, Ill., 113 S. Ct. 538, 549 (1992), the Supreme Court treated the movement of a trailer home affixed to a foundation as a seizure, but this would apply whether the object was a home or a car. Back to text

724. Olmstead v. United States, 277 U.S 438, 466 (1928). Back to text

725. The exception for messages entrusted to the Postal Service, deriving from Ex parte Jackson, 96 U.S. 727, 733 (1877), which held that the Fourth Amendment protects sealed letters in the mail, was explained as owing to the government's control of the mails. See also United States v. Chadwick, 433 U.S. 1, 10 (1977) (reaffirming application of the Fourth Amendment to mails). Back to text

726. Katz v. United States, 389 U.S. 347, 351 (1967). Back to text

727. Id. at 361 (Harlan, J., concurring). Back to text

728. Id. at 352. Back to text

729. Id. at 372 n.* (Black, J., dissenting). Back to text

730. Id. Back to text

731. Id. (noting Olmstead v. United States, 277 U.S. 438 (1928)). Back to text

732. 389 U.S. at 365 (Black, J., dissenting). Back to text

733. See supra text accompanying note 656 (noting that government has prevailed in most of the recent search and seizure cases before the Supreme Court). Back to text

734. See supra text accompanying notes 467-70 (describing ways in which the Boyd decision has been limited). Back to text

735. The Supreme Court's test for resolving extent-of-curtilage questions demonstrates the resonance of the idea of "house": the area claimed to be curtilage will be placed under the home's "umbrella" of protection if intimately tied to the home by proximity, an enclosure surrounding the home, the nature and uses to which the area is put, and the steps taken by the resident to protect the area from observation by passersby. See United States v. Dunn, 480 U.S. 294, 301 (1987) (listing the four factors with which the curtilage question should be resolved). Back to text

736. See United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting) (arguing that the privacy "analysis must . . . transcend the search for subjective expectations"); Terry v. Ohio, 392 U.S. 1, 19 (1968) (noting that "the central inquiry under the Fourth Amendment [is] the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security"); see also Dunn, 480 U.S. at 300 ("[T]he extent of curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself."). Back to text

737. The same Court that looked to community standards in order to determine the[**PAGE 877**]line between obscenity and legal pornography has not chosen to apply this amorphous standard to determine objectively reasonable expectations of privacy. Back to text

738. For a fuller description, see Daniel B. Yeager, Search, Seizure and the Positive Law: Expectations of Privacy Outside the Fourth Amendment, 84 J. Crim. L. & Criminology 249 (1993) (surveying and analyzing the Court's Fourth Amendment jurisprudence). Back to text

739. See California v. Greenwood, 486 U.S. 35, 39-40 (1988) ("An expectation of privacy does not give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable."). Back to text

740. See Florida v. Riley, 488 U.S. 445, 451-52 (1989) (plurality opinion) ("[T]here is nothing . . . to suggest that helicopters flying at 400 feet are sufficiently rare in this country to lend substance to respondent's claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude."); see also California v. Ciraolo, 476 U.S. 207, 215 (1986) (holding valid a warrantless aerial surveillance of yard enclosed by a 10-foot fence). Back to text

741. See Oliver v. United States, 466 U.S. 170, 179 (1984) (finding that "[i]t is not generally true that fences or `No Trespassing' signs effectively bar the public from viewing open fields in rural areas"); see also United States v. Dunn, 480 U.S. 294 (1987) (refining the concept of a protected zone within curtilage); Ciraolo, 476 U.S. at 215 (finding a reasonable expectation of privacy lacking with regard to a property surrounded by a 10-foot fence in an age in which private and commercial flight in public airways is routine). Back to text

742. 104 S. Ct. 3296 (1984). Back to text

743. Id. at 3303. Back to text

744. See Yeager, supra note 738, at 252-53; Heather L. Hanson, Note, The Fourth Amendment in the Workplace: Are We Really Being Reasonable?, 79 Va. L. Rev. 243, 262-73 (1993) (suggesting a return to a property rights basis for privacy in the workplace); see also Soldal v. Cook County, Ill., 113 S. Ct. 538, 543-45 (1992) (explaining that the Fourth Amendment protects property interests as well as privacy interests). But see Rawlings v. Kentucky, 448 U.S. 98, 105-06 (1980) (refusing to extend constitutional protection in the context of a defendant's ownership interest in illegal drugs by rejecting "the notion that `arcane' concepts of property law ought to control the ability to claim the protections of the Fourth Amendment"); Kreimer, supra note 592, at 89-94 (discussing the virtues of disclosure); Stephen J. Schnably, Property and Pragmatism: A Critique of Radin's Theory of Property and Personhood, 45 Stan. L. Rev. 347, 378 n.153 (1993) (warning that one danger of the reliance upon a property theory of rights is that the home-as-fortress becomes a refuge for harmful acts that might be prevented by exposure). Back to text

745. The argument in the text has mixed implications for other forms of privacy. Records may be protected to the extent that they are encrypted and that production of the key cannot be compelled. Note that compulsion may be a subpoena, a grand jury inquiry, or even civil discovery instigated by the government on pain of tax forfeiture. See Ann L. Iijima, The War on Drugs: The Privilege Against Self-Incrimination Falls Victim to State Taxation of Controlled Substances, 29 Harv. C.R.-C.L. L. Rev. 101, 127-34 (1994) (describing how records and other information may be compelled by taxing authorities to the detriment of drug dealers). Back to text

746. See infra Technical Appendix, part B. Back to text

747. The full ramifications of this question are beyond the scope of this Article. Back to text

748. Digital Privacy and Security Working Group, supra note 31, at 6. Back to text

749. The Supreme Court's decision in California v. Carney suggests that this day is still some ways off. See California v. Carney, 471 U.S. 386, 393-94 (1985) (holding that a moving recreational vehicle is a car and not a house). Back to text

750. Bok, supra note 2, at 16. Back to text

751. Id. at 18. Back to text

752. Id. at 28. Back to text

753. See, e.g., Gandy, supra note 587, at 15 (noting that the collection, processing, and sharing of information about individuals and groups is widespread and continues to expand); see also Kevin Fogarty, Data Mining Can Help to Extract Jewels of Data, Network World, June 6, 1994, at 40, 40 (describing the practice of "data mining" by which corporations accumulate and manipulate enormous data bases). Back to text

754. Osborn v. United States, 385 U.S. 323, 341 (1966) (Douglas, J., dissenting). Back to text

755. See supra text accompanying notes 582-91. This may give cause to invoke another archetype--Frankenstein's monster. Back to text

756. See supra part I.C.1.c.i (discussing the ITAR). A law banning unescrowed cryptography, or even only unescrowed commercial cryptography, would provide some advantages for law enforcement. However, under such a regime it might be easier to prove that someone has used unescrowed cryptography than to prove the offense that the secret message would tend to prove. If the defendant will not decrypt the message, she may still be subject to prosecution for the (lesser?) offense of using unregistered cryptography. Although this smacks of prosecuting Al Capone for tax evasion, it may still be an effective technique.

Defining some types of cryptography as contraband would be another approach to the problem, again one with First Amendment problems. Courts have upheld a variety of contraband statutes, but none affected free speech. For example, courts have upheld statutes banning radar detectors (fuzzbusters). See generally Nikolaus F. Schandlbauer, Comment, Busting the "Fuzzbuster": Rethinking Bans on Radar Detectors, 94 Dick. L. Rev. 783, 785-89 (1990) (listing the jurisdictions which prohibit radar detectors). Statutes banning burglars' tools, such as N.Y. Penal Law § 140.35 (McKinney 1988) and Fla. Stat. ch. 810.06 (West 1994), have been upheld also, see, e.g., People v. Atson, 526 N.Y.S.2d 618, 619 (N.Y. App. Div.) (requiring more than "purely circumstantial" evidence to sustain a conviction of possession of burglar's tools), appeal denied, 528 N.E.2d 896 (N.Y. 1988); Thomas v. State, 531 So. 2d 708, 709-10 (Fla. 1988) (requiring a specific intent to commit burglary when the state burglary tool statute criminalizes common household tools or devices), as have drug paraphernalia statutes, such as 21 U.S.C. § 863 (Supp. V 1993), see, e.g., Posters `N' Things, Ltd. v. United States, 114 S. Ct. 1747, 1749 n.5, 1754-55 (1994) (upholding the constitutionality of 21 U.S.C. § 857 (1988), which Congress repealed and replaced in 1990 with the virtually identical § 863). Back to text

757. See supra text accompanying note 367. Back to text

758. See supra part I.C.1.c.i (discussing the ITAR's lack of effectiveness). Back to text

759. See generally E-mail from Rishab A. Ghosh to Michael Froomkin (Jan. 11, 1995) (on file with author) (arguing, by quoting from his article in Asian Age magazine of January 2, 1995, that in cyberspace "distance--as we usually understand it--disappears). Back to text

760. See supra part I.A. Back to text

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