Academic journal article Journal of Criminal Law and Criminology

Adventures on the Autobahn and Infobahn: United States V. Jones, Mandatory Data Retention, and a More Reasonable "Reasonable Expectation of Privacy."

Academic journal article Journal of Criminal Law and Criminology

Adventures on the Autobahn and Infobahn: United States V. Jones, Mandatory Data Retention, and a More Reasonable "Reasonable Expectation of Privacy."

Article excerpt

I. INTRODUCTION

On July 28, 2011, the House Judiciary Committee voted nineteen to ten in favor of passing H.R. 1981, also known as the Protecting Children from Internet Pornographers Act of 2011. (1) Among other provisions aimed at stamping out child pornography on the Internet, one particular section of the bill stirred up a maelstrom of controversy among privacy and civil liberties advocates. The provision required every Internet service provider (ISP) to retain, for a period of at least eighteen months, certain information about every user of its service in order to allow law enforcement to access records of suspected child pornographers. (2)

Many of the same privacy advocates eagerly awaited last year's decision in United States v. Jones. (3) In Jones, the Supreme Court considered whether extended warrantless GPS tracking of a vehicle by law enforcement violates the Fourth Amendment. (4)

These two hot-button issues both present concerns about privacy and how courts should regulate interactions between individuals and the government. In this Comment, I argue that these two controversies--one involving surveillance of Internet users on the infobahn and one involving surveillance of drivers on the autobahn--represent and illustrate the same underlying problem with current Fourth Amendment jurisprudence: the "assumption of risk" doctrine first articulated in Katz v. United States, (5) I further contend that this doctrine is misguided and has become untenable in modern society. Under a modified Katz test, setting aside the assumption of risk doctrine, citizens have a reasonable expectation of privacy both in user data retained by ISPs and in the totality of the movements of their vehicles. The modified Katz test proposed here renders both of these regimes presumptively unconstitutional. Such a modified test would at the very least begin the process of bringing the Court's Fourth Amendment jurisprudence back in line with the fundamental principles behind that Amendment.

Part I briefly outlines the history of and controversy surrounding both mandatory data retention and warrantless GPS tracking in the context of the Court's Fourth Amendment jurisprudence. Part II articulates how these two controversies can be understood as symptoms of the same problem: the assumption of risk doctrine. It then explains why the current state of Fourth Amendment jurisprudence does not provide adequate safeguards for individual privacy and presents the normative reasons supporting a change in the doctrine. Finally, Part III offers a modified "reasonable expectation of privacy" framework that excludes the assumption of risk doctrine. This Part concludes that both mandatory data retention and warrantless GPS tracking raise grave constitutional concerns under such a test. It then addresses concerns about potential future applications of Katz under this test.

II. BACKGROUND

A. THE FOURTH AMENDMENT AND KATZ V. UNITED STATES

The Fourth Amendment provides a short and rather vague statement that acts as almost the sole regulation of conduct between individual citizens and law enforcement officers. It provides:

   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. (6)

As one commentator notes, "An elaborate regulatory system rests upon this one sentence." (7) The Fourth Amendment regulates a myriad of state--citizen interactions, from more traditional traffic stops, search and frisks, and arrests, to high-tech investigatory actions like wiretaps, Internet surveillance, and GPS vehicle tracking.

A recurring question of interpretation in this regulatory system is what constitutes a "search" or "seizure" for purposes of the Amendment. …

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