(1) Laurence H. Tribe, The Constitution in Cyberspace: Law And Liberty Beyond the Electronic Frontier, The Humanist, Sept./Oct. 1991, at 15, 16 (emphasis deleted).
(2) Black's Law Dictionary 322 (6th ed. 1990).
(3) 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. U.S. Const. amend. IV.
(4) Katz v. United States, 389 U.S. 347, 351 (1967).
(5) See, e.g., Rakas v. Illinois, 439 U.S. 128, 137 (1978) ("Each time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights."); see also Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development, and Future of the Exclusionary Rule in Search and Seizure Cases, 83 Colum. L. Rev. 1365, 1393 (1983) ("It is the price the framers anticipated and were willing to pay to ensure the sanctity of the person, the home, and property against unrestrained governmental power.").
(6) See, e.g., Thomas A. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. Mem. L. Rev. 483, 632 (1995) ("Individualized suspicion... has served as a bedrock protection against unjustified and arbitrary police actions.").
(8) See infra notes 43-59 and accompanying text.
(9) See Philip Elmer-DeWitt, Welcome to Cyberspace: What Is It? Where Is it? And How Do We Get There?, Time, Mar. 22, 1995, at 4, 6. ("All of this is being breathlessly reported in the press....").
(10) Anne Meredith Fulton, Comment, Cyberspace and the Internet: Who Will be the Privacy Police?, 3 CommLaw Conspectus 63, 63 (1995).
(11) Naturally, one's machine can only be accessed when it is on and connected to the network. Increasingly, however, as the computer assimilates the functions of video phone, answering machine, fax machine, mail box, and on-line storehouse, people will be inclined to leave their machines available 24 hours a day.
(12) See John Markoff, Taking a Computer Crime to Heart, N.Y. Times, Jan. 28, 1995, s 1, at 33.
(13) C. Ryan Reetz, Note, Warrant Requirement for Searches of Computerized Information, 67 B.U. L. Rev. 179, 191-92 (1987).
(14) See, e.g., Ellen C. Lesser Gordon T. Thompson, How a Hacker Tried to Fool a Security Expert, N.Y. Times, Feb. 22, 1995, at D19 (reporting story of hacker discovered only because of exceptionally sophisticated defense); see also Terri A. Cutrera, Note, The Constitution in Cyberspace: The Fundamental Rights of Computer Users, 60 UMKC L. Rev. 139, 142 (1991).
(15) Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at "Understandings Recognized and Permitted by Society," 42 Duke L.J. 727, 763 (1993).
(16) Similarly, in 1928 it may have seemed reasonable to assume that anyone with a phone had voluntarily assumed the risk that the line would be tapped. See, e.g., Olmstead v. United States, 277 U.S. 438, 466 (1928)("The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside...."), overruled by Katz v. United States, 389 U.S. 347 (1967). Today, no one using the phone believes they are voluntarily accepting such a risk: "To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communications." Katz, 389 U.S. at 352 .
Put another way, virtually no one would feel that they have assumed the risk that others will examine their voice mail merely because their messages are accessible from remote locations. This is true even though voice mail "hackers" are not uncommon. Neither does one lose an expectation of privacy in one's home because the lock is shoddy and thieves are rampant; if the location invokes Fourth Amendment protection, any barrier to prying eyes suffices. By contrast, if a location does not invoke such protection, no barrier is sufficient. See, e.g., Oliver v. United States, 466 U.S. 170, 178 (1984)(ruling private fields not protected despite fences and "no trespassing" signs).(17) Edward Baig, Ready to Cruise the Internet?, Bus. Wk., Mar. 28, 1994, at 180, 180.
(18) Don L. Boroughs & David Fischer, Big! Heightened Global Competition, Innovative Technology and Washington's Friendly Regulatory Climate Have Unleashed a New Tidal Wave of Corporate Mergers in America, U.S. News World Rep., Sept. 11, 1995, at 46, 46-48.
(19) "The ECPA [Electronic Communications Privacy Act]... makes it illegal to manufacture, assemble, possess, or sell any device which is primarily useful for the surreptitious interception of electronic communications.... Software appears to fall within the conception of a 'device' used to intercept computer communications." Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. & Tech. 75, 93 (1994).
(20) 18 U.S.C. s 2252(a)(4)(B) (Supp. 1995) (criminalizing possession of three or more items that contain visual depiction of child pornography if such pornography has been shipped in interstate commerce or produced using materials shipped in interstate commerce -- "including by computer"); see also Osborne v. Ohio, 495 U.S. 103, 111 (1990)(upholding criminalization of possession of child pornography).
(21) It is currently legal to modify programs for archiving purposes. 17 U.S.C. s 117(2) (Supp. 1995). Nevertheless, copy protections exist (and others could be designed) that allow for archiving a program and still restrict the program's use to a particular machine. Any modification to such a protection would violate the law and create a species of digital contraband.
(22) For example, a system manager may possess a hacking program to test his own security. See 18 U.S.C. s 2512(2)(a) (Supp. 1995). Of course, there are also legitimate research and law enforcement uses for narcotics and automatic weapons.
(23) See, e.g.,Commonwealth v. Copenhefer, 587 A.2d 1353 (Pa. 1991) (explaining how computer files linked suspect to murder for which he was convicted).
(24) See Randolph Sergent, Note, A Fourth Amendment Model for Computer Networks and Data Privacy, 81 Va. L. Rev. 1181, 1222-23 (1995) (discussing possible range of police search).
(25) See, e.g., Winick, supra note 19; Reetz, supra note 13; Sergent, supra note 24.
(26) Sergent, supra note 24, at 1204-05.
(27) It would also be possible to design a computer search program that looked for smaller sections within software and therefore reported a much greater amount of information. Such a search would reveal irrelevant information and, consequently, would clearly violate the Fourth Amendment. See infra Section II.B. This Note is focused on the more difficult question of a search that can only inform law enforcement of the definitive presence of digital contraband.
(28) The officer might turn the program loose with the orders to find the words "child pornography." Nevertheless, not only is the presence of the words "child pornography" insufficient evidence of anything criminal to justify the search, but any search that at heart inquires into the intellectual/verbal/mental beliefs of an individual risks treading on First Amendment values. Cf. Stanford v. Texas, 379 U.S. 476, 485-86 (1965) (holding warrant for "books, records, pamphlets" of Texas Communist Party impermissibly broad in light of First Amendment).
(29) There are a number of ways that the government might achieve such technical access. For example, the famous "Internet worm" released by Robert Morris seized control of thousands of systems connected to the Net by exploiting security flaws in Unix systems well known to the National Security Agency and others in the computer security field. See Katie Hafner & John Markoff, Cyberpunk: Outlaws and Hackers on the Computer Frontier 253-341 (1991). The worm was designed to run unobtrusively in the background, and if it had functioned as Morris originally intended, it might never have been noticed by systems operators.
Still another possibility would be to contract with a private party who had already obtained information about the possession of digital contraband. As part of the test copy for Windows 95, for example, Microsoft included a small program that would by default deliver to Microsoft a record of programs run on the user's machine whenever a user signed onto the new Microsoft Network. In Short; Thwarting 'Softlifters,' Info. Wk., May 22, 1995, at 88, 88. Given the Court's conclusion in United States v. Miller, 425 U.S. 435 (1976), that an individual had no Fourth Amendment interest sufficient to object to a seizure of records of his checking account maintained by his bank, it seems likely that the government's purchase or seizure of records from a network or operating-system vendor would be constitutional.
In sum, while such a search is presently hypothetical, it is technically possible -- in much the same sense that a free flow of traffic during L.A.'s rush hour is possible. This Note does not argue that such a possibility is likely, but merely that the concrete nature of this hypothetical search allows us to better envision and understand the structure of the Fourth Amendment.(30) One of the first responses that many people seem to have to the prospect of such a search is to fight the hypothetical. They argue that even if this search were possible in theory, there is an unacceptably high probability that the government would botch the search program (as Morris did with his worm) such that the search would damage the target systems. While certainly a proven failure would weigh heavily against the use of such a search, the search is at least hypothetically feasible, and one suspects that many would prefer to avoid grappling with the search if any grounds might be found to avoid considering it. The aversion to contemplating this search leads me to believe that many feel a deep uneasiness with the prospect of a successful search of this nature, even if they are unable to articulate a reasoned ground on which to object to such a surgically targeted search.
(31) See Software-Piracy Case in Los Angeles Leads to Felony Charges, Wall St. J., Nov. 15, 1995, at B10 (describing capture of software pirate Thomas Nick Alefantes, known as "Captain Blood," and seizure of an estimated $1 million worth of illegally copied software).
(32) It might be objected that sophisticated users would either keep their data off-line or encrypt every file in order to evade detection. Put another way, this question asks if the mere fact of leaving the data technically accessible amounts to an assumption of risk equivalent to leaving an automatic weapon visible from an outside window. The obvious answer is, that inasmuch as the data is not publicly visible, leaving such data on-line is more analogous to keeping an automatic weapon in an unlocked closet. Given the Court's conclusion in Arizona v. Hicks, 480 U.S. 321 (1987), that merely lifting a turntable to reveal its serial number constituted a search, it seems unlikely that the status of such a search would turn on the extra levels of protection that one might take with data in one's possession. A court should not consider the absence of encryption on one's personal hard drive to be an assumption of risk any more than the absence of a deadbolt (or even a locked door) is an invitation for an official search of one's home.
(33) Although this search is novel in a real life context, Professor Loewy considered the hypothetical of an "evidence-detecting divining rod" that would lead police directly to evidence of wrongdoing. See Arnold H. Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81 Mich. L. Rev. 1229, 1244 (1983). Professor Loewy's conclusion that "there could be no fourth amendment objection to [the rod's] use," id. at 1246, is considered in Part III, infra.
(34) In seizing control of the computer to run the search, the government's program would almost certainly slow other uses of the computer for a brief period, as well as adding a trivial amount of wear to the computer hardware. This impact, while real, is clearly de minimis.
(35) In this way, the Net-wide search differs from most searches that enhance natural senses because generally sense-enhanced searches "cannot be as focused as traditional physical searches." David E. Steinberg, Making Sense of Sense- Enhanced Searches, 74 Minn. L. Rev. 563, 577 (1990). The search also differs from dog-sniffs, which, while generally accurate and nonintrusive, lack both the broad reach of the Net-wide search and its nonconfrontational character. See infra Section II.B.
(36) The search, even if legal under the U.S. Constitution's Fourth Amendment, might not be legal under various state versions of the Amendment that have at times been construed more liberally. See, e.g.,People v. Dunn, 564 N.E.2d 1054, 1057-58 (N.Y. 1990)(interpreting state constitutional provision worded same as Fourth Amendment as covering broader range of searches). Of course, such state constitutional concerns might not be relevant if the search were conducted by a federal agent.
(37) Berger v. New York, 388 U.S. 41, 59 (1967).
(38) Under the property standard, the Court recognized only a very limited class of well-defined and long-established exceptions to the warrant requirement, including exigent circumstances, open fields, and (pursuant to the government's obligation to ensure the safety of the roads) automobiles. See Vale v. Louisiana, 399 U.S. 30, 34-35 (1970) (listing exceptions).
FN42. 392 U.S. 1 (1968) .
FN43. 116 U.S. 616 (1886) . Only two majority opinions prior to Boyd, Livingston v. Moore, 32 U.S. 469, 482 (1877) , and Ex Parte Jackson, 96 U.S. 727, 733 (1877) , even mention the Fourth Amendment, and both summarily conclude that the Amendment was violated.
FN44. Boyd, 116 U.S. at 618 .
FN45. Id. at 625 .
FN46. Id.
FN47. Id. at 630 .
FN48. Id. at 623 .
FN49. Id. at 631-32 .
FN50. See Hale v. Henkel, 201 U.S. 43, 70-75 (1906) (listing cases allowing subpoenas of documents and holding documents of any incorporated firm subject to proper subpoena).
FN51. 265 U.S. 57 (1924) (holding "open fields" not constitutionally protected areas in light of common law "open fields" exception).
FN52. See Lanza v. New York, 370 U.S. 139, 143 (1962) (listing protected areas, including house, office, store, hotel room, automobile, and taxicab, but concluding that visitors' room of jail was not protected area).
FN53. Katz v. United States, 389 U.S. 347, 357 (1967) ; see supra note 38.
FN54. 277 U.S. 438 (1928) , overruled by Katz, 389 U.S. 347 (1967) .
FN55. John Perry Barlow, co-founder of the Electronic Frontier Foundation, once defined cyberspace as " 'that place you are in when you are talking on the telephone."' Elmer-DeWitt, supra note 9, at 8.
FN56. Olmstead, 277 U.S. at 466 .
FN57. Id. at 465 .
FN58. 365 U.S. 505 (1961) .
FN59. Id. at 509 .
FN60. For a discussion of the difficulty of using such a search program to verify the presence of contraband on a particular drive, see supra note 28 and accompanying text.
FN61. Louis Michael Seidman, The Problem with Privacy's Problem, 93 Mich. L. Rev. 1079, 1086 (1995).
FN62. Id. at 1087.
FN63. 389 U.S. 347 (1967) .
FN64. Id. at 351-52 (citations omitted).
FN65. 387 U.S. 523 (1967) .
FN66. Id. at 536 .
FN67. Id. at 537 .
FN68. Id. at 538 .
FN69. 392 U.S. 1 (1968) .
FN70. Id. at 28-29 .
FN71. Id. at 31 (Harlan, J., concurring).
FN72. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971) ; see also Payton v. New York, 445 U.S. 573, 603 (1980) (Blackmun, J., concurring) ("Where, however, the warrantless arrest is in the suspect's home, that same balancing requires that, absent exigent circumstances, the result be [a Fourth Amendment violation]. The suspect's interest in the sanctity of his home then outweighs the governmental interests." (emphasis added)).
FN73. See infra note 78 and accompanying text.
FN74. See Seidman, supra note 61, at 1088-89.
FN75. United States v. Karo, 468 U.S. 705, 716 (1984) .
FN76. Id. That the property in question, a can of ether, was not itself contraband likely played a decisive role in the Court's analysis, since one has no privacy interest in contraband. See United States v. Jacobsen, 466 U.S. 109, 123 (1984) ; see also infra text accompanying notes 83-93.
FN77. Oliver v. United States, 466 U.S. 170, 178-79 (1984) .
FN78. United States v. Karo, 468 U.S. 705, 714-15 (1984) ; Payton v. New York, 445 U.S. 573, 587 (1980) ; see also Welsh v. Wisconsin, 466 U.S. 740, 749 (1984) (" '[A] search or seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show... the presence of "exigent circumstances.""' (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971) )).
FN79. 483 U.S. 868 (1987) .
FN80. Id. at 873 (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in judgment)). To see the same balance applied to the office, compare Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (holding warrantless inspections of all businesses impermissible) with New York v. Burger, 482 U.S. 691 (1987) (finding that state interest in preventing car theft justifies warrantless inspection of junkyard office).
FN81. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) , quoted in Andresen v. Maryland, 427 U.S. 463, 480 (1976) .
FN82. Of course, in the most technical of sense, the computer search could be described as both "general" and "exploratory" inasmuch as it scans through all files in search of the forbidden one. However, since this scan reveals nothing and thus involves none of the collateral damage generally associated with "rummaging," the Court would almost certainly conclude that it involved no meaningful rummaging.
FN83. 462 U.S. 696 (1983) .
FN84. 466 U.S. 109 (1984) .
FN85. Place, 462 U.S. at 707 .
FN86. Id.
FN87. Id.
FN88. See, e.g., United States v. Lewis, 708 F.2d 1078, 1080 (6th Cir. 1983) (holding use of trained dog to detect odors of illegal drugs emanating from luggage and other closed containers not Fourth Amendment violation because odors accessible to public).
FN89. Jacobsen, 466 U.S. at 124 n.24 .
FN90. Id. at 123 .
FN91. Id. at 125 .
FN92. See, e.g., United States v. DiCesare, 765 F.2d 890, 901-02 (9th Cir. 1985) (Reinhardt, J., concurring); Commonwealth v. Martin, 626 A.2d 556, 563 (Pa. 1993) (Cappy, J., concurring) ("[C]itizens [should be assured] that absent probable cause to believe criminal activity is afoot, they are safe from the probing noses of canine carnivores...."); 1 Wayne R. LaFave, Search and Seizure s 2.1(e), at 315 (2d ed. 1987).
FN93. While Place and Jacobsen did not directly consider dog-sniffs of the home, several lower courts have faced this issue. Although the Second Circuit in United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985) , found that Place did not apply to sniffs of the home, the Second Circuit seems alone in this position; its Thomas opinion has been generally criticized by other courts; see, e.g., United States v. Colyer, 878 F.2d 469, 475 (D.C. Cir. 1989) ; People v. Dunn, 564 N.E.2d 1054, 1057 (N.Y. 1990) ("[W]e find [the Second Circuit's] attempt to distinguish [ Place] unpersuasive.").
FN94. An objection might be raised that, even if the search results in only a de minimis impact on a single individual, the dragnet nature of the search would yield hundreds of thousands of de minimis costs each time the search is run. Commentators have argued in the context of routinized drug tests and sobriety checkpoints that the government's interest in a search's success should only be measured against the sum of costs on society at large. See, e.g., Nadine Strossen, The Fourth Amendment in the Balance: Accurately Setting the Scales Through the Least Intrusive Alternative Analysis, 63 N.Y.U. L. Rev. 1173, 1196 (1988). At the same time, the Court has regularly concluded that the benefits of such routinized drug tests and sobriety checkpoints are properly weighed against the harm suffered by any single individual. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety checkpoint); National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (drug tests); Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602 (1989) (same).
FN95. "[T]he protections intended by the Framers could all too easily disappear in the consideration and balancing of the multifarious circumstances presented by different cases...." Dunaway v. New York, 442 U.S. 200, 213 (1979) .
FN96. Over the last 25 years, commentators and dissenting Justices have repeatedly criticized the Court's application of the Katz test. See Scott E. Sundby, "Everyman"'s Fourth Amendment: Privacy or Mutual Trust Between Government and Citizen?, 94 Colum. L. Rev. 1751, 1752 n.3 (1994) (listing "impassioned" article titles that reflect "academy's frustration... [and] concern"). Any balancing test is vulnerable to both honest differences of opinion among judges and to deliberate result-oriented manipulation; the latter possibility in particular finds Justices and commentators alike claiming that the Court has placed its collective thumb on the side of the government's interests. See Sitz, 496 U.S. at 473 (Stevens, J., dissenting); Tracey Maclin, Constructing Fourth Amendment Principles from the Government Perspective: Whose Amendment Is It, Anyway, 25 Am. Crim. L. Rev. 669 (1988).
FN97. See Sundby supra, note 96, at 1753-54 ("What if the problem is not with judges improperly doing their Fourth Amendment sums but with the factors themselves?").
FN98. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 350 (1974) ("[T]he Court cannot always state openly all of the considerations that affect its decisions.").
FN99. Payton v. New York, 445 U.S. 573, 586 n.24 (1980) (quoting Johnson v. United States, 333 U.S. 10, 14 (1948) ).
FN100. Loewy, supra note 33, at 1244.
FN101. Id. at 1246.
FN102. Id. at 1244.
FN103. See United States v. Jacobsen, 466 U.S. 109, 123 n.23 (1984) (citing Loewy, supra note 33).
FN104. Alan F. Westin, Privacy and Freedom 7 (1967).
FN105. See J.M. Balkin, What Is a Postmodern Constitutionalism?, 90 Mich. L. Rev. 1966, 1988 (1992) ("Our ability alternatively to provide or withhold aspects of our private selves preserves and constitutes our autonomy.").
FN106. Loss of control over the flow of information about ourselves results in "psychological costs... including stress, tension, and anxiety." Irwin Altman, The Environment and Social Behavior: Privacy, Personal Space, Territory, and Crowding 45 (1975).
FN107. Boyd v. United States, 116 U.S. 616, 630 (1885) , quoted in Olmstead v. United States, 277 U.S. 438, 474-75 (1928) (Brandeis, J., dissenting).
FN108. Olmstead, 277 U.S. at 478 (Brandeis, J., dissenting). The realm of privacy not breachable under the bright-line rule also provides a limited solution to the problem of "cumulation." As currently articulated, the Court's balancing test does not account for the fact that little intrusions on any particular individual can accumulate to the point at which the subjective effect of each additional "minimal" intrusion is significantly greater than if it had been the only governmental intrusion. See Scott E. Sundby, A Return to Fourth Amendment Basics: Undoing the Mischief of Camara and Terry, 72 Minn. L. Rev. 383, 439 (1988). A bright-line test, by minimizing intrusions into the home, provides at least a sanctuary free of accumulating "minimal" intrusions. See Wyman v. James, 400 U.S. 309, 335 (1971) (Douglas, J., dissenting) ("The bureaucracy of modern government is not only slow, lumbering, and oppressive; it is omnipresent. It touches everyone's life at numerous points.... Isolation is not a constitutional guarantee; but the sanctity of the sanctuary of the home is such -- as marked and defined by the Fourth Amendment.").
FN109. See, e.g., United States v. Miller, 425 U.S. 435, 443 (1976) ("The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government."); see also Ruth Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421, 428 (1980) ( "Perfect privacy is, of course, impossible in any society.").
FN110. See, e.g., United States v. White, 401 U.S. 745, 752 (1971) ("[O]ne contemplating illegal activities must realize and risk that his companions may be reporting to the police.").
FN111. Tehan v. United States ex rel. Shott, 382 U.S. 406, 414 n.12 (1966) (quoting United States v. Grunewald, 233 F.2d 556, 581-82 (2d Cir. 1956) (Frank, J., dissenting), rev'd, 353 U.S. 391 (1957) ).
FN112. In this respect, the regularized, suspicionless searches by means of metal detectors at airports (or magnetic-strip detectors in libraries) are more acceptable searches, since one acknowledges that one has entered places where others control the environment. Cf. Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 473 (1990) (Stevens, J., dissenting) (justifying airport and library searches). This is very different from the home or office, where one's security depends on one's control.
FN113. Terry v. Ohio, 392 U.S. 1, 13 (1968) .
FN114. Black's Law Dictionary 240 (6th ed. 1990).
FN115. Or that socially disfavored files could suddenly become illegal ones. See supra text accompanying note 112.
FN116. Of course, preventing law enforcement from using such a tool at all will not necessarily prevent rogue departments from creating one. Nevertheless, given the expense of developing, testing, and maintaining such a tool, it seems unlikely that law enforcement would invest in it solely for its illegitimate uses. On the other hand, once such a tool exists, law enforcement need not necessarily misuse the tool for it to intimidate; the mere possibility of misuse may be enough to deter dissident thought. But cf. United States v. Karo, 468 U.S. 705, 712 (1984) (noting that police technique "created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.... It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence."). Of course, for this purpose, papers may be different, since almost by definition they implicate First Amendment values that are to be given broad protection. But cf. Stanford v. Texas, 379 U.S. 476, 485 n.16 (1964) (noting that stolen books or ledgers of gambling operation are treated no differently than other evidence).
FN117. See Sundby, supra note 96, at 1768 ("When factual probable cause is the core regulating device of government behavior, the Amendment is basically self-regulating because control over the government's ability to intrude rests primarily with the individual. So long as a person does not engage in behavior arising to probable cause... individual privacy cannot be invaded."); see also Vernonia Sch. Dist. v. Acton, 115 S. Ct. 2386, 2397 (1995) (O'Connor, J., dissenting) ("Searches based on individualized suspicion also afford potential targets considerable control over whether they will, in fact, be searched because a person can avoid such a search by not acting in an objectively suspicious way.").
FN118. See Bowers v. Hardwick, 478 U.S. 186, 206 (1986) (Blackmun, J., dissenting) ("Just as the right to privacy is more than the mere aggregation of a number of entitlements to engage in specific behavior, so too, protecting the physical integrity of the home is more than merely a means of protecting specific activities that often take place there.").
FN119. 338 U.S. 49, 61 (1949) (Jackson, J., concurring in part and dissenting in part). Clearly, complete obedience to the laws is not required for organized society to function, or society would long since have disappeared.
FN120. U.S. Const. amend. I.
FN121. U.S. Const. art. I, s 7; see also INS v. Chadha, 462 U.S. 919, 946-51 (1983) (describing checks and balances).
FN122. "[T]he guaranties of due process, though... considered as procedural safeguards 'against executive usurpation and tyranny,' have in this country 'become bulwarks also against arbitrary legislation."' Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting) (quoting Hurtado v. California, 110 U.S. 516, 532 (1884) ).
FN123. Arizona v. Hicks, 480 U.S. 321, 329 (1987) .
FN124. See Maclin, supra note 96, at 705-13 (tracing history of opposition to customs searches and challenging concept that colonists engaged in smuggling were merely " 'incidental beneficiaries of a rule not designed for their benefit"' (quoting Loewy, supra note 33, at 1248 n.86)).
FN125. See Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev. 257, 287 (1984) (noting that opposition leading to Bill of Rights came from those who "did not trust their new rulers to exercise unchecked power either benignly or reasonably").
FN126. In a quite recent article, William Stuntz makes the argument that the Fourth Amendment's principal focus "seems to have been to make it harder to prosecute objectionable crimes -- heresy, sedition, or unpopular trade offenses in the seventeenth and eighteenth centuries, regulatory offenses in the late nineteenth century." William Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L.J. 393, 394 (1995). In this view, the decision in Boyd to prohibit the subpoena of a builder's records played a role in impeding the regulatory state during the Lochner-era while having "no effect on the mass of ordinary crimes." Id. at 400.
While Professor Stuntz may be correct, Boyd was hardly a case whose facts revolved around expanding government regulation. It was rather a case about fraud and customs duties, and however opposed the Lochner-era Court may have been to excessive substantive regulation, contractual fraud and customs evasions were hardly the sorts of crimes that the Court was likely to find substantively problematic.FN127. See Robert C. Ellickson, Property in Land, 102 Yale L.J. 1315, 1352 (1993).
FN128. See Payton v. New York, 445 U.S. 573, 583-84 (1980) ("Indeed, as originally proposed... the draft contained only one clause which directly imposed limitations on the issuance of warrants....").
FN129. 2 The Records of the Federal Convention 73 (Max Farrand ed., 2d ed. 1911).
FN130. See generally James Scott, Weapons of the Weak 35 (1985) (describing wide-scale resistance that becomes "a social movement with no formal organization, no formal leaders, no manifestoes, no dues, no name, and no banner.").
FN131. Robert C. Ellickson, Order Without Law 217 (1991).
FN132. One such example would be anti-miscegenation laws. See Loving v. Virginia, 388 U.S. 1 (1967) . Another would be anti-homosexuality statutes. See Richard A. Posner, Sex and Reason 346 (1992) ("Statutes which criminalize homosexual behavior express an irrational fear....").
FN133. See Watson v. City of Memphis, 373 U.S. 526, 529 (1963) (asserting "manifest unconstitutionality" of segregation); Baird v. State Bar, 401 U.S. 1, 6 (1971) (plurality opinion) ("The First Amendment's protection of association prohibits a State from excluding a person from a profession or punishing him solely because he is a member of a particular political organization or because he holds certain beliefs.").
FN134. See, e.g., Adler v. Board of Educ., 342 U.S. 485 (1952) (finding no infirmity in law prohibiting municipal employment for members of Communist party).
FN135. Emile Durkheim, The Rules of Sociological Method 71 (George E.G. Catlin ed., Sarah A. Solovay & John H. Mueller trans., 1938) (1895).
FN136. See, e.g., Ellickson, supra note 131, at 217 ("An informal enforcer... wants to be able to act surreptitiously.").
FN137. See, e.g., Bates v. City of Little Rock, 361 U.S. 516, 520-22 (1960) (describing danger attendant upon revelation of NAACP membership list).
FN138. See Thomas Leary, The Commission's New Option that Favors Judicial Discretion in Sentencing, 3 Fed. Sentencing Rep. 142, 144 n.10 (1990) (citing comments of Stanley S. Arkin at October 1990 conference at George Mason University).
FN139. Cf. James V. DeLong, The Criminalization of Just About Everything, Am. Enterprise, Mar./Apr. 1994, at 26, 29 ("Governmental speakers at legal seminars concede that there are so many environmental requirements and they are so complex that no one can be in compliance.").
FN140. See Stephen J. Adler & Wade Lambert, Common Criminals: Just About Everyone Violates Some Laws, Even Model Citizens, Wall St. J., Mar. 12, 1993, at A1.
FN141. See id. ("The two authors... admit, between them, to having committed 16 of the 25 offenses listed on the chart on page A4, carrying maximum jail time of 15 years and fines of as much as $30,000. Most of the dozens of people interviewed... have violated eight or more.").
FN142. Cf. DeLong, supra note 139, at 30 ("[F]ew people in any position of responsibility are free of an ominous sense of being subject to [legal] risks they cannot assess or prevent, no matter how honestly they try.").
FN143. Approximately six million Americans, including many in the same households that are connecting to the Internet, now keep their personal accounting on the program Quicken. John McCormick, Our Man Versus the Quicken Cult, Newsweek, Feb. 27, 1995, at 49, 49. Under the same logic that applies to the Net-wide search, an automated computer program that checked one's Quicken records against one's tax return would be constitutional so long as the program revealed nothing to government agents beyond noncompliance.
FN144. See, e.g., Paula Span, Sexy Calvin Klein Ads Spark FBI Inquiry: Investigation To Determine if Child Exploitation Laws Were Violated, Wash. Post, Sept. 9, 1995, at A1.
FN145. Payroll accounting packages might also be searched. See supra note 143 (discussion of Quicken).
FN146. 478 U.S. 186, 195 (1986) ("[I]llegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home.").
FN147. Compare Hadley Arkes, The Philosopher in the City 81 (1981) (finding contradiction in protection of ideas that deny democratic truths) with Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam) (protecting mere advocacy of anti-constitutional goals).
FN148. Professor Sundby argues that the Fourth Amendment might be seen as mitigating against actions that undercut the mutual trust between the state and the citizen. In his view, "a crucial part of American democracy's staying power is the role of reciprocal government-citizen trust in fostering the confidence among all individuals that they have the opportunities and capabilities to participate meaningfully in society." Sundby, supra note 96, at 1779. In a sense, the need for disobedience and the need for trust are flip sides of the same coin; in both cases, the state must consider the individual as, to some degree, a sovereign capable of individual choice rather than an obedient subordinate.
FN149. Brinegar v. United States, 338 U.S. 160, 183 (1949) (Jackson, J., dissenting in part).
FN150. Such a search would have been possible, since at the moment the manifesto was delivered, presumably only the New York Times, the Washington Post, Penthouse, and the Unabomber himself possessed it. See John Elson, Murderer's Manifesto: Threatening More Attacks, Unabomber Issues a Screed Against Technology, Time, July 10, 1995, at 32, 32.
FN151. While the Net-wide search is one such surgically targeted search, other technologies might achieve the same effect. One reported case on thermal scanners suggests that the operator of a thermal scanner can "determine the level of coffee in a cup, and tear ducts on a human face" from outside the home. United States v. Field, 855 F. Supp. 1518, 1531 (W.D. Wis. 1994) . While a human operator might thus discover private facts, a computer could in theory be attached to the scanner and report only evidence of criminal activity (like the thermal patters of a marijuana plant). The resulting device would function much like an "evidence-detecting divining rod."
FN152. Pennsylvania v. Mimms, 434 U.S. 106, 108-09 (1977) (per curiam).
FN153. Tehan v. United States ex rel. Shott, 382 U.S. 416 (1966) .