The Fourth Amendment

Topic for today

This class is an overview of the application of the Fourth Amendment to wiretapping and other kinds of electronic surviellance, followed by a closer look at how these fundamental rights apply to surveillance on the Internet.

Readings to do before class

Summary background

• Read the chapter on Wiretaps (pp. 153-192) from Ben Franklin's Web Site

Basic Fourth Amendment Surveillance Cases

• U. S. Constitution, Fourth Amendment

• Olmstead v. United States, 277 U.S. 438 (1928). This was an early rejection by the Supreme Court of Fourth Amendment rights in telephone conversations on the grounds that wiretaps do not constiute a physical search, and nothing is actually seized.

• Katz v. United States, 389 U.S. 347 (1967). This decision effectively reversed Olmstead and established a reasonable right of privacy in electronic communications, on the grounds that "the Fourth Amendment protects people, not places."

• Smith v. Maryland, 442 U.S. 735 (1979). In the decision, the Supreme Court held that there is no expectation of privacy in telephone pen register information, and hence a installation of a pen register does not require a warrant.

Laws/Statutes

• Electronic Communications Privacy Act (18 USC 2501 et seq & 2701, et. seq.) Just skim this, to get an idea of the complexity of the law. See the summary in the Dempsey article (below).

• Communications Assistance for Law Enforcement Act (CALEA), House Report H.Rpt.103-827 (concentrate on sections entitled 'Summary & Purposes' & 'Background & Discussion.')

• The Nature and Scope of Governmental Electronic Surveillance Activity, summary report by the Center for Democracy and Technology.

Applying the 4th Amendment to the Internet

• The Fourth Amendment and the Internet, Testimony of James X. Dempsey, Senior Staff Counsel, Center for Democracy and Technology, Before the Subcommittee on the Constitution of the House Judiciary Committee, April 6, 2000

• Familiarize yourself with the Communications Assistance for Law Enforcement Act of 1994 by looking through the material on CDT's CALEA page

• Communications Privacy in the Digital Age: Revitalizing the Federal Wiretap Laws to Enhance Privacy, James X. Dempsey (optional, but useful background)

Current events: New case on CDA immunity

In this ruling, Doe v. AOL (a "John Doe" case because the plaintiff is a minor), the Florida Supreme Court held that section 230 of the CDA immunizes AOL from prosecution stemming from an AOL user distributing child pornography. The majority opinion cites Zeran.

There is a strong dissenting opinion:

This flies in the face of the very purpose of the Communications Decency Act. At least one goal of the CDA is, as its title suggests, to promote "decency" on the Internet. What conceivable good could a statute purporting to promote ISP self-policing efforts do if, by virtue of the courts' interpretation of that statute, an ISP which is specifically made aware of child pornography being distributed by an identified customer through solicitation occurring on its service, may, with impunity, do absolutely nothing, and reap the economic benefits flowing from the activity?