13 February 2007

Welcome to the Age of Okhrana

The reprehensible Lamar Smith (R-TX) has introduced two pieces of legislation in an attempt to drag the Internet back into the nineteenth century.1 These pieces of legislation purportedly show Smith's sensitivity to the sophisticated communications technology of the twenty-first century, but in the end show only his sensitivity to the sophisticated surveillance methods of the Охранное отделение (Okhrana) — the Tsarist secret police.

Imagine, for a moment, that the U.S. Postal Service opened every piece of mail you sent and received, scanned it, cross-indexed it in a database, resealed it, and sent it on. Oops. Not just the U.S. Postal Service — under H.R. 837, that would include FedEx, private couriers, and virtually any other means of getting a written communication to another that doesn't involve the sender handing it directly to the recipient. That is precisely what H.R. 837 requires, allegedly to make it easier to track purveyors of child pornography.

As frightening as this sounds by itself, consider for a moment the increased emphasis on transacting business online that would (by analogy) have been done directly in an earlier time. Bank records; tax records; communications with Congresscreatures; drafts of legal documents; the list goes on. Despite the loophole-ridden "assurances" in H.R. 836, you don't really think that such data is going to remain unattacked and unexploited by someone, do you?

Or, perhaps, Smith isn't looking at the nineteenth century as much as the mid-twentieth century. In this day and age, we're used to thinking of the telephone as a "private" means of communication. Sure, one can get a wiretap, but only on probable cause. Right? That's a relatively recent concept, though — only since 1967. During the Prohibition era, the government tapped telephones at whim in the name of Drug War I. The Supreme Court refused to put any sort of realistic check on such surveillance, since (at that time) there always "could be" an operator on the line — thus, the calls weren't truly private.2 That view was overruled 1967, when the Court decided that the public did expect telephone conversations to be private.

"[T]he Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected" because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.

The critical fact in this case is that "[o]ne who occupies it, [a telephone booth] shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume" that his conversation is not being intercepted. The point is not that the booth is "accessible to the public" at other times, but that it is a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable.3

The "Internet SAFETY Act" functions as a legislative means of denying that the public may ever be "surely entitled to assume" that any Internet-based conversation is not being intercepted. In short, it functions to remove e-mail (and other Internet-based communications) from the zone of communications for which a government actor must have a warrant to justify surveillance.

I believe these pieces of legislation are unconstitutional and ill-founded scare tactics of the worst sort. They also represent a serious attack on reasonable expectations of privacy that members of the public — who increasingly do private business online, such as banking, taxes, and communicating with the government — might otherwise have in electronic and online communications. The ends do not justify the means. The ends are shaped by the means. Attempting to ensure the "safety" of children by denying any real privacy in online communications to anyone does nothing to ensure the safety of anyone... except, perhaps, in the sense of allowing (and, indeed, encouraging) silent, selective surveillance.

  1. See Cyber-Security Enhancement and Consumer Data Protection Act of 2007, H.R. 836 (06 Feb 2007); Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act (SAFETY) of 2007, H.R. 837 (06 Feb 2007).
  2. See Olmstead v. United States, 277 U.S. 438, 464–67 (1928).
  3. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (citations omitted). The implications of the fact that this formulation of the foundation of Fourth Amendment rights — reasonable expectation of privacy — as learned by every law student who takes the basic course in Criminal Procedure appears only in a concurring opinion is left as an exercise for the student. Or the paranoid, remembering that just because you're paranoid doesn't mean they're not out to get you.