The conclusion that a Net-wide search would be per se unconstitutional under the earlier standard and yet per se constitutional under the current balancing test highlights a potential and often obscured risk of abandoning a bright-line standard for a balancing approach. [FN95] While the most recognized drawback of such a shift is the problem of judicial discretion, [FN96] a less obvious but no less important danger comes to light when the balancing test requires no balancing. This is the possibility that significant interests included sub rosa *1109 in the original standard will be lost when establishing the factors relevant for balancing. [FN97] The Court may fail to identify particular elements because those elements are ephemeral, difficult to articulate, or politically unpopular if made explicit. [FN98] In the context of the Net-wide search, this leads to the question: What, if anything, might be missing in the balancing test as currently articulated? What Fourth Amendment objections might be raised to a computerized search that only uncovered illegalities and neither substantially burdened its targets nor revealed irrelevant personal information?

The natural place to begin this inquiry is with the relation between computers and the home and office, those areas privileged under the traditional bright-line standard. For growing millions of Americans, our computers are the instruments on which we compose and record our thoughts, organize our lives, and maintain our communications with one another. The computer is our diary, our date book, our checkbook, and our letter file. Perforce the very values that one automatically associates with the home and office -- the needs for privacy, intimacy, and security -- apply to the computers that are located there.

Nevertheless, to say that computers reached through cyberspace deserve the same level of protection as homes and offices only begins to answer the question, for certainly " '[c]rime, even in the privacy of one's own quarters, is, of course, of grave concern to society. .. ."' [FN99] The Fourth Amendment is not an absolute bar to searches of the home, and as Arnold Loewy notes, it follows from the government's right to search for and seize evidence of crime that "an individual has no inherent right to secrete such evidence." [FN100] The fact that evidence of a crime is located in the home does not confer upon its possessor the right to withhold that evidence with impunity.

Professor Loewy's conclusion, however, that "if a device could be invented that accurately detected [contraband] and did not disrupt the normal [activities] of people, there could be no fourth amendment objection to its use" [FN101] only follows if one accepts his axiom that the Fourth Amendment exists solely to insure that the innocent are as free as possible from intrusive searches and seizures. In his view, the innocent should have no objection to being searched by an "evidence-detecting divining rod" [FN102] so long as the search carries no collateral burdens. While Professor Loewy's axiom seems to be accepted by the current Court, [FN103] there are at least two independent policy *1110 interests that might favor the existence of a zone safe from governmental intervention until the government has independently developed evidence of wrongdoing. Inasmuch as these interests are fundamental to the roles of the home and office, they were necessarily incorporated, if tacitly, in the original, bright-line approach. And inasmuch as these interests are fundamental to the well-being of society at large, they ought to be incorporated more fully into the current balancing test.

Clearly the home and office have always served a principal role as psychological sanctuaries from the outside world. The Net-wide search, like any "evidence-detecting diving rod," raises the question of how much one's sense of sanctuary depends on one's control over the flow of information to the outside world. While at first glance it might appear that the average citizen would not be threatened by any given search for any specific illegality, the fact that we cannot always predict in advance which socially disfavored actions will be criminalized suggests that a Net-wide search lessens one's security in the performance of such actions. Moreover, inasmuch as targets know that the search could potentially be directed toward unpopular but noncriminal activities, the search may impose a chilling effect on the exercise of such activities.

The importance of being able to limit the flow of personal information has long been recognized as a key component in the individual's ability to establish a secure relationship with the outside world. In his 1967 book on privacy, Alan Westin argued that privacy should be defined as selective control of access to information about one's self or one's group. [FN104] This power over information allows the individual some ability to govern how she appears to others, and consequently allows her some control of her interaction with the world. [FN105] Without that control, the individual's psychological security is endangered, and her assurance of autonomy from the majority is threatened. [FN106] Recognition of the need for such a space may illuminate the Court's comment in Boyd that "[i]t is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and *1111 private property" [FN107] that violates the Fourth Amendment. To preserve the security of such a realm, the Founders "conferred, as against the Government, the right to be let alone." [FN108]

Naturally, no person has absolute control over all information about herself, since every time she interacts with another person, she loses control of the information about her that the other person has learned. [FN109] Furthermore, every time an individual takes an action in public or with public consequences, she runs the risk that others will observe her action or will infer that action from its consequences. Nevertheless, to the extent that an individual's actions in public or with others [FN110] are voluntary, she knowingly assumes the risk that third parties may learn and divulge such information without her knowledge or consent. This is a natural part of human interaction, and loss of control outside one's home and office is balanced by the existence of a "private enclave where [s]he may lead a private life." [FN111] The home and office play a critical role in establishing the boundary between the individual's area of security and her area of public life.

It is true that the Net-wide search finds only "relevant" information, but it is society at large and not the individual who defines what is illegal and thus what is relevant. Outside of the limited number of enumerated substantive restrictions, virtually any socially disfavored act can be criminalized at the discretion of the majority; the individual would then retain no control over whether or not information relevant to such an act would be revealed. In this light, one critical problem with the Net-wide search or any other form of an "evidence-detecting divining rod" is that it denies to the individual any space in which she can be sure of controlling information about herself. [FN112] In short, *1112 no refuge remains in which the individual would not have to worry about the risk of exposure, for as control over the boundary between the area of security and the area of public life disappears, so too does the area of security itself.

In the particular case of the Net-wide search, the need for a zone of control is closely related to a "chilling effect" problem. Almost immediately upon being presented with the hypothetical Net-wide search, many have objected that, if the government can search for copies of child pornography, it can also use the same technique to search for Communist party literature. The obvious response, as the Court observed in Terry, is that the Fourth Amendment "cannot properly be invoked to exclude the products of legitimate police investigative techniques on the ground that much conduct which is closely similar involves unwarranted intrusions upon constitutional protections." [FN113] In other words, the fact that an officer without a warrant may not constitutionally break down one's door does not prohibit an officer with a warrant from so doing.

Nevertheless, if one accepts the definition of a "chilling effect" as a government practice that constricts First Amendment freedoms through "the present or future exercise or threatened exercise of coercive power," [FN114] a search that eliminates an individual's control over the boundaries to her most private realms would likely be perceived as a threatening exercise of coercive power. Even if the government were scrupulous in searching only for illegal, rather than merely disfavored, files, targets would nevertheless be aware that at any time and without any warning the government could easily and economically widen its scan to include disfavored files. [FN115] This possibility is compounded by the knowledge that, unlike the general search of colonial times, a widened Net-wide search might take place without the target's knowledge. Inasmuch as an individual's computer is increasingly the tool on which her most private thoughts are formulated, expressed, and recorded, those with dissident thoughts would reasonably feel constricted in articulating them given the awareness that they lack control over even their most personal means of expression. [FN116]

*1113 By contrast, a standard that insists that searches of the home and office be based on individualized suspicion would require the government to assemble first a reasonable belief based on information already outside the control of the individual. In other words, not until the individual has acted with the understanding that there could be telltale traces outside of her zone of control, thereby knowingly risking public attention, does she become vulnerable to government intrusion. [FN117] This bright-line rule, by erecting a substantial barrier at the border to the home, guarantees to each individual the possibility of some control over the flow of personal information because it guarantees her control of a realm in which she need not worry excessively about the presence of others. [FN118]

A second objection to the Net-wide search might be found in the principle that government should exercise only limited amounts of power. To say that an individual has no right to secrete evidence is not to say that it is desirable or appropriate for the government to have perfect enforcement powers. Justice Jackson, concurring in part in Watts v. Indiana, observed that the Constitution and the Bill of Rights were intended to "represent the maximum restrictions upon the power of organized society over the individual that are compatible with the maintenance of organized society itself." [FN119] This observation suggests that the Fourth Amendment might do more than merely protect the innocent against unwarranted invasion; the Fourth Amendment could be seen as a significant procedural check upon the total power of government.

It is, of course, obvious that the Constitution and Bill of Rights impose specific substantive limits on the power of government -- one need look no further than the injunction that "Congress shall make no law respecting an establishment of religion." [FN120] Equally importantly, however, the Constitution *1114 provides procedural restrictions on the use of power, such as the bicameralism requirement and the requirement that bills receive either a presidential signature or the approval of two-thirds of the members of both houses of Congress. [FN121] To allow the government to enact a law without satisfying such procedural safeguards would allow the government to act with unreasonable expediency; the safeguards thus serve to inhibit the growth of power. [FN122]

In a like manner, the Fourth Amendment can be seen as a deliberate constraint on the power of government. Certainly, as the Court has recognized, "there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all"; [FN123] what may be new is the realization that the "price" of a minimum of criminality is in fact one of the interests tacitly advanced by the Fourth Amendment. It is worth remembering in this context that the colonists who fought the writs of assistance were arguably at least as angered about successful customs searches as they were about unsuccessful customs searches. [FN124] A government that could reach out and discover wrongdoing whose every trace was hidden in the privacy of the home was a government that had arrogated and concentrated too much power in itself and left its citizens too little freedom. [FN125]

The protection of property embodied in the Boyd decision can be seen as a procedural safeguard that achieved the substantive goal of preserving liberty. [FN126] More than just demarcating a realm of personal privacy, property provides private parties a source of power independent from -- and potentially *1115 in opposition to -- the state. [FN127] If the Framers' principal concern had been merely specific substantive governmental offenses, they could have drafted an amendment that prohibited only those offenses. [FN128] Instead, the Framers chose to write an amendment with a reach considerably more broad. Of course, it was a Constitution they were creating, and the knowledge that the Constitution would face developments both novel and unforeseeable no doubt prompted them to select a flexible and comprehensive instrument for limiting government abuses. By choosing an instrument like property that is independent from the government, they ensured a space in which virtually all governmental action might be limited.

Even under a democratic system in which discrete and insular minorities are judicially protected, criminalized actions may nevertheless serve several important functions. For instance, limited violation of a given law may be seen as a form of social insurance, protecting society against the possibility that the government's policy is mistaken. Governmental action might be capricious and ill-considered without violating any substantive right, for as James Wilson explained to the Constitutional Convention, "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect." [FN129] To the extent that people defy such a law in spite of the potential penalties, their actions may preserve opportunities that the majority has unthinkingly foreclosed. Furthermore, continual disobedience by a minority may provide society an impetus to reevaluate the law.

Crime in this sense may serve a purpose in the subtle processes of negotiation that takes place between a government and a minority of its citizens, or among citizens themselves where government would prove ineffective. Where minorities have limited influence on decisionmakers, they can often affect policymaking through widespread disobedience of particularly burdensome laws. [FN130] For example, industrial "slowdowns" may spur labor reform where strikes have been criminalized, draft dodging may undermine support for a controversial war, and squatting may foster land reform when other channels have proven ineffective. On a smaller scale, criminal acts may serve as localized sanctions for damages that the law cannot efficiently police. The farmer in rural Shasta County who castrates a trespassing bull is acting in a criminal manner, but he is also upholding a social norm that encourages *1116 ranchers to control their livestock in order to prevent unnecessary crop damage. [FN131]

This possibility for reevaluation is particularly significant when social change is at issue. Inasmuch as society criminalizes that which it fears the most, criminal laws occasionally represent a collective prejudice and an irrational desire for the status quo. [FN132] If we limit all substantive protection of disfavored action to only those actions currently recognized as substantively protected by the Constitution, we limit the possibility of social development. Today we recognize that segregation and McCarthyism were not merely unjust and unwise but actually unconstitutional; [FN133] had the government been capable of complete enforcement in 1950 of the then- constitutional majority will, [FN134] quite possibly both would continue today. Instead, "criminal" actions led the way toward social change. As Durkheim once wrote, "[c]rime implies not only that the way remains open to necessary changes but that in certain cases it directly prepares these changes.. .. How many times, indeed, it is only anticipation of future morality -- a step toward what will be!" [FN135]

While clearly much of this change is accomplished through open civil disobedience on explicit moral grounds, much more is accomplished through concealed resistance on often selfish grounds. The actions of the farmer, the draft dodger, the squatter, and the "slow" employee may be justified by an ideology, but the majority of these actions are driven as well by self- interest, and such actions would not be performed if they came at an immediate cost to the actor rather than an immediate gain. [FN136] Even the civil rights movement in the South depended significantly on the covert support of individuals who stood to benefit from the movement but who could not afford the price of disclosure. [FN137] Widespread disobedience to the state is difficult enough when there is a risk of serious punishment; it is virtually impossible when the punishment is certain.

In the modern world, the problem of majority dominance is joined by the problem of the increasing size of the regulatory state. Each year, various *1117 branches of government enact large quantities of regulations, the vast majority of which the average individual neither considers before they are enacted nor knows about once they are in force. The sum total of such law is staggering: One commentator estimates that there are over 300,000 regulations at the federal level alone that are criminally enforceable. [FN138] Even if every law were clear on its face, and even if there were no objections to the substantive nature of any of the laws, the sheer multitude of laws and regulations would make it difficult for an individual to be aware of, much less in compliance with, every one. [FN139]

As a consequence, at any given time a very large number of Americans are in violation of some law, and such violations expose them to the punitive power of the state. [FN140] Were the government suddenly to become aware of these transgressions, the individual's reputation, property, and even personal liberty would be subject to the discretion of the state. [FN141] That discretion could be turned against the individual and used to discourage disfavored conduct totally unrelated to the original offense. Only the fact that the vast majority of these transgressions will never be discovered allows an individual to feel that she might live without a constant concern for her legal status. [FN142] Only this limitation on the reach of government permits her to feel secure in her autonomy.

The problem is compounded by the fact that the range of a given law is often unclear. Examples abound of daily affairs in which it is difficult to know when one is in violation of the law: Is a given use of copyrighted material fair use? Does a given meal constitute a tax-deductible expense? [FN143] Does a suggestive picture of a child constitute child pornography? [FN144] Does *1118 employing a teen part-time require Social Security payments? [FN145] In America today, how many people could feel certain that they have violated no criminally sanctionable law in the past year?

The protection of a secure zone around the home and office serves to make some disobedience possible by allowing a space in which the government's enforcement power is handicapped. In light of this, it will perhaps be objected that this zone begins to sound like the general right of privacy considered and rejected by the Court in Bowers v. Hardwick. [FN146] While it is certainly true that such an expansive privacy right would achieve the goals posited here, such a strong conclusion is far from necessary. Legislatures might still outlaw activities that take place in the home and office, and law enforcement might still prosecute such offenses. Individuals who act in opposition to the law must do so knowing that society disapproves of their actions and that they run the risk of punishment. Accomplices -- or the effects outside the protected areas of actions within -- may betray the crime to law enforcement. Individuals discovered through such revelations would be appropriately subject to criminal punishment.

Nevertheless, in the interests of preserving the possibility of a low level of criminal activity and of allowing individuals some freedom from the punitive power of the state, the Fourth Amendment might be seen as militating against any search technique that left society little flexibility. To some it may seem paradoxical for a court to consider the need for disobedience. Of course, to some it has always seemed a contradiction that the Constitution should protect the right of individuals to support manifestly nondemocratic ideals. [FN147] In both cases, the Constitution permits opposition to the majority on the understanding that a small dose of fundamental opposition keeps a democracy balanced and functioning.