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What's Wrong With Orin Kerr's "Technology Neutrality"?

My last post laid the foundations for a discussion of Orin Kerr’s latest law review article, “Applying the Fourth Amendment to the Internet: A General Approach” (2010) 62 Stan.L.Rev. 1005.

Today’s post will focus on Kerr’s proposed application of the Fourth to the Internet. In particular, I write about his “technology neutral” content/non-content doctrine, explaining, among other things, why that label is a misnomer. (Or should I say why those labels are misnomers?)

James Madison, writing as “Publius” (the writer of, among others, Federalist Paper No. 48; not the “Publius” I linked previously), said:

It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it.[1]

Orin Kerr proposes analogizing from the limits that have developed in physical space to a determination of the proper “mapping” to the limits in cyberspace. His proposal, however, misses the mark primarily because it adheres to the misguided belief in the need to “balance” the work of the government — in this case, law enforcement officers — against the rights recognized as inviolable by the Constitution. In so doing, he shreds the “parchment barriers” established by our Founders; he forgets, as Steven Pinker has noted:

Someone must be empowered to make decisions and enforce laws, and that someone is inherently vulnerable to corruption. How to anticipate and limit that corruption became an obsession of the framers.[2]

My argument is that this obsession of the Framers should be an obsession of ours, as well. Kerr’s proposal abandons the obsession: rather than anticipate and limit corruption, he wants to “map the protections of the Fourth Amendment” — the watered-down, all-but-useless version of the Fourth Amendment as it exists in meatspace — “to cyberspace.”[3]

Kerr doesn’t explain why he wants to do this, but it appears to be out of some misplaced idea that we must somehow “play fair” with law enforcement. Since law enforcement can read the outside of an envelope in meatspace, we should provide them with equivalent information from the digital data streams or files which constitute activity on the Internet.

This argument fails at the outset, though, not only by not obsessing over the potential for corruption that accompanies allowing law enforcement warrantless access to “non-content” digital information. It additionally fails to recognize why courts — however misguided they might have been — allowed law enforcement to see the outside of envelopes. They did so because they could view the outside of such envelopes unaided and without invasion when the envelopes transitioned through meatspace. Digital information, however, does no such thing.

Kerr knows this, too.

[E]ntering enclosed spaces ordinarily constitutes a search that triggers the Fourth Amendment. Entering a home, entering a car, or opening a sealed package is normally considered a search that the Fourth Amendment regulates with either a warrant requirement or probable cause. Exceptions exist, of course…. But in most cases, enclosed spaces receive Fourth Amendment protection. In the language of the legal fiction adopted in current doctrine, a person presumptively enjoys a “reasonable expectation of privacy” in inside spaces, even if he shares the spaces with others and privacy is unlikely.[4]

And why is that? Because the Fourth Amendment says,

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.[5]

Most people would feel it was unreasonable to believe that just because they gave one of their packages to someone else to deliver, that this would lead to law enforcement having the right to open the package. They would feel if they rented space from some person or company to house their effects — the ones in which they have the right to be secure against unreasonable searches by the government — it would be unreasonable for that individual or company to give access to their effects to law enforcement without even so much as notifying them, the rightful owners. This is why even in Chinapeople are outraged when their credit information is posted online. This is why American citizens respond with outrage and lawsuits when their publicly-available records are posted online. This is why a USA Today editorial argued, “NSA has your phone records; ‘trust us’ isn’t good enough.”And this is why the one thing in Washington that has had bipartisan support in the last decade came when

Both Democrat and Republican congressmen…expressed alarm at revelations that the NSA was building an unprecedented database of phone records with the help of three major US telephone companies.[6]

In fact, although alleged precedents regarding moving objects, like ships, have expanded the rule so that now cars, wagons, things transiting public spaces, etc., today receive minimal protection,

Americans loudly protested the seizures of American ships like the Active and the Liberty by the British…. In the last years before the American Revolution, Americans increasingly regarded not only houses but ships as castles.[7]

Arguing that all we’re doing is “mapping” meatspace to cyberspace is a red herring, “the purpose of which is to divert the audience from the truth or an item of significance.”

Kerr’s “content/non-content” distinction makes no sense for a number of reasons.

First, there’s really no such thing as “non-content.” An address on the outside of an envelope is content! If this were not true, there would be no point to writing the address on the outside of the envelope. Kerr cannot possibly miss the irony of his own reference to this non-content “stuff” as “non-content information….”[8]

The content may not tell anyone much: a letter to your Uncle Osama might be a banal request for him to send you the family recipe for Laban Bil Bayd (eggs in garlicky yogurt sauce), or the scarier recipe for How to Build a Bomb. (I wonder how long it’s going to take Carnivore’s descendant to target me now.) But it tells them this much: You have some connection to your Uncle Osama. If your uncle is already on their watch list, the mere fact that you’ve written to him can land you smack dab in the middle of law enforcement’s sights, even if all you want is dinner.

As I said, Kerr recognizes this problem, but apparently feels it is not really a problem. After all, if law enforcement followed you, or your postman, or your uncle and somehow managed to spot an envelope addressed to your uncle from you, it’s the same thing.

Only it’s not.

Because the second problem with Kerr’s “content/non-content” distinction is that none of this cyberspace information is visible to law enforcement without some kind of invasion. And invasions are what the Fourth Amendment was intended to protect against.

To see the envelope in meatspace, all they have to do is look over someone’s shoulder, or spot it lying on a counter, or sticking out of a postal bag; to see your “non-content” information in cyberspace, they have to tap a wire, or convince someone to tap it for them, and otherwise invade some private space to get to the information. In other words, they have to go insidesomething to get the “non-content” data. (In fact, they have to go inside the same something that “houses” the “content” data.)

Kerr says his “translation is accurate because the distinction between content and non-content information serves the same function online that the inside/outside distinction serves in the physical world.”[9] After all, Kerr says:

Investigating officers can watch the suspect leave home and go to different places. They can watch him go to lunch, go to work, and go to the park; they can watch him drive home; and they can watch him park the car and go inside. In effect, this is to/from information about the person’s own whereabouts.[10]

But that’s just the point: (assuming they can keep up with him) law enforcement is physically able to do these things without the need for any assistance from other citizens and without any special equipment. They cannot do the same thing with bits moving across a wire, or stored on a hard drive inside some home or business facility.

So what’s this “function” Kerr thinks his distinction performs?

Ahhh…grasshopper, you begin to see!

The “function” is the function of leveling the playing field. Since law enforcement can’t see inside wires, or view (or even access) hard drives without the permission of whoever is holding the hard drives — since they can’t follow the bits around; can’t watch the bits leave home and go to other places; can’t see the bits go to lunch, go to work, go to the park; and can’t watch those bits drive the car back home, park it and go inside — well, this just isn’t fair, is it?

They can’t legally watch me take a dump in my bathroom without a warrant, either. That doesn’t mean there isn’t just as much crap there as with Kerr’s proposal to even the playing field. (Well, okay; maybe Kerr has me beat there.)

The authors of the Fourth Amendment didn’t say,

We want law enforcement to be able to do certain things. If technology changes, then we should loosen up a little bit on the Fourth Amendment to accommodate them.

No. They said,

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.[11]

Large numbers of people feel that it is unreasonable for the government to have access to their email. The fact that the courts do not is irrelevant: the courts are part of the very government against whom the Fourth Amendment was meant to protect us!

Furthermore, increasingly, the courts are abandoning the job they were meant to do, no small part of which is to ensure that the government stays within its limits. (One of these days, I’m really going to have to write that article explaining why the legal process is not supposed to ensure the government gets a fair shake; it is supposed to hinder the government.)

But even if large numbers of people were unconcerned with unrestrained governmental access to “non-content information” which it could not obtain without invasion, that would not matter. A majority unconcerned with the impact of governmental invasions into the privacy and property rights of others is just as irrelevant to the rightness or wrongness of the concept today as it was when Madison pointed out that “the form of populargovernment…enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.”[12]

Democracies were not well-thought-of by our Framers and our form of government, therefore, is not a democracy. As one of the Framers and the primary author of the Federalist Papers, Alexander Hamilton, put it,

[T]yranny arises when the rights of individuals are unprotected from “the effects of those ill humors, which the arts of designing men, or the influence of popular conjunctures, sometimes disseminate among the people themselves.”[13]

This, after all, is why one of the most highly-regarded Framers of the Constitution, Benjamin Franklin, reputedly said, “A republic, if you can keep it,” when asked what form of government came out of the Constitutional Convention. It is why the Framers struggled to ensure that

the Constitution structured an ingenious system of constitutional checks and choke points designed to minimize the likelihood that an arguably unconstitutional federal law would pass and take effect.[14]

Kerr’s “content/non-content” distinction, contrary to his affirmation, is not a piece of “technology neutrality.” It shifts the balance in favor of law enforcement. Kerr says, “Some line must be drawn” with respect to protected versus unprotected communications.[15] Kerr ignores the fact that a line already exists: the Fourth Amendment disallows arbitrary access to citizens’ “persons, houses, papers, and effects.”[16] Kerr says,

Fourth Amendment rights are personal: each person can only seek redress of their own rights, not the rights of others.[17]

And from this Kerr decides, essentially, “too bad; so sad” that the Fourth Amendment doesn’t provide tools to stop the government from watching all of its citizens at once, rather than leaving the government capable of watching only a few.[18] Kerr quotes the United States Supreme Court for justification in this respect:

As the Supreme Court emphasized in Katz v. United States, the Fourth Amendment “cannot be translated into a general constitutional right to privacy…. [T]he protection of a person’s general right to privacy — his right to be let alone by other people — is…left largely” to other sources of law outside the Constitution.[19]

But the question of whether or not the government may obtain information regarding the Internet activities of every citizen is not a question of whether that individual has a “right to be let alone by other people”; it is a question of whether an individual has a right to be let alone by the government.[20]

Various Supreme Court cases, including several cited by Kerr, have failed to recognize this distinction. The United States Constitution does not forbid individual citizens from troubling other citizens, except when the individuals doing the troubling are acting on behalf of the State.[21] The United States Constitution forbids “the government” from going beyond its limits; the Fourth Amendment specifically limits it with respect to search and seizure of persons and things.

Thus, the “reasonable expectation of privacy” rule was something of a compromise that has ultimately had a deleterious effect on the Fourth Amendment. By comparing whether persons not working on behalf of the government might be able to do certain things, a decision is made that it’s okay for the government to do those things. If a normal citizen could access something, then there is no reasonable expectation that we are free from the prying eyes of the government.

This is why the Fourth Amendment has been gutted! When we have asked if someone should expect that their activities are safe from the prying eyes of our neighbors, we forgot that the concern of the Framers was whether or not our activities were safe from the prying eyes of government agents.

This is why Nannie McCormick Coleman, explaining the meaning of the Fourth Amendment in 1910, said,

No officer, simply because he is an officer, has the right to search a house, or lay his hands on a person, their papers, or effects. Before this can be done, some one must file a written affidavit before a judge, justice of the peace, or other judicial officer, setting forth the offense he complains of, the name of the person charged with its commission, or the papers or effects he claims the right to have seized, and a particular description of the place to be searched. If such judicial officer believes there is probable cause for the complaint, he issues and signs what is called a warrant to some officer. Then, and not until then, can the officer act under it. Such officer must read, or let the party charged read this warrant. He must show his lawful authority before he acts. Otherwise, he subjects himself to prosecution; himself and his bondsmen to a civil suit for damages, and gives the party whom he attempts to seize, or whose house he attempts to search, the right to resist, by proper force, his action.[22]

Apparently, back then, some constitutional scholars believed officers could not act without warrants. We’ve come a long way, baby, to get where we got to today. Frankly, I’m all for giving up the Exclusionary Rule if we get to go back to how things used to be. No warrant? Eat lead!

The problem, of course, and a major criticism for some of what I’m writing here, is that those days are long gone. Without an armed insurrection, an overthrow of the existing government and a forced return to the text of the Constitution, the government is going to continue to “craft” new rules that allow it to do what it wishes, irrespective of the wishes of citizens. The government is no longer a government “of the People, by the People, for the People.” It has become — as it was in the days leading up to the first American Revolution — more often the enemy of the People.

Let me end this article with five quick, if not-so-minor, points.

First, to the government (and anyone else who is confused): I am not here intending to argue in favor of overthrowing the government. I have simply stated my opinion that unless the government is overthrown, we will not likely be able to re-institute the Constitution which allegedly constitutes that government. Although I periodically think I hope for a Revolution, I suppose in reality I don’t. I’m not interested in the death and destruction I think that will require. So if you’re looking for someone who is going to overthrow the government, you should probably look elsewhere. I don’t even own a weapon. This is not to say I would not join a Revolution if a credible one were to come along. But in the meantime, I’m going to do the best I can to fight within the system to try to get the government to honor the Constitution.

Second — and the end of the above paragraph provides a nice segue to this — as I was trying to push through to an ending for my article, Orin Kerr did me the honor of dropping by to read and comment upon my last post. Two points in particular stand out and I have to say that “sometime soon” I intend to address them more completely. One point is that Kerr sees a “fairly narrow restriction” when it comes to the Framers’ intent in drafting and ratifying the Fourth Amendment. I disagree, but unfortunately my disagreement will require at least an entire new post to explicate. For now, I would direct those interested to start by reading Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search & Seizure, 1789-1868 (2006). I recommend that book because it not only addresses this first point, but the second point. The second point comes when Kerr says,

Of course, the narrow intended role of the Fourth Amendment doesn’t necessarily mean that role couldn’t expand, which of course it did, in particular during the Warren Court era.

Why Kerr skips the Reconstruction Era following the Civil War is beyond me. The extension of the Fourth Amendment during that period — particularly the application of a broader Fourth Amendment right against state governments via the Fourteenth Amendment than had ever been applied to the federal government — is probably more far-reaching than anything done by the Warren Court.

Third, Kerr alludes to the fact that the Fourth Amendment was drafted “in an era before professional police forces.” His comment is intended to support a narrow reading of the Framers’ intent as mentioned above. It actually makes an accurate reading (i.e., understanding) of the Framers’ view of necessary governmental limitations leading to the drafting and ratification of the Fourth Amendment (note that I did not say “intent”) all the more important. Had the Framers’ to contend with the existence of a “professional police force,” particularly considering the disjunct between Scalia’s version of professionalism and what we really have, they very likely would have been significantly more explicit. As Taslitz puts it, “the larger purpose for which the Framers adopted the text [is] namely to curb the exercise of discretionary authority by officers.”[23] Perhaps, had the Framers anticipated a standing army modern militarized police force, we might not have so much confusion over what the meaning of “and” is: searches, and possibly even seizures, without warrants might have been clearly disallowed.

Fourth, I’ve worked on this article for several days now. I finally decided I just had to stop. For now. I now believe to do justice to any “response” — rather than what I think blogs work best for (e.g., “a reaction”) — like Kerr, I will need to write a law review article. I don’t know if anyone would publish it, but the fact of the matter is that I finally decided a blog article was not a good venue for a complete response. As I said, I may have to write several more to address certain issues. But, frankly, I don’t want to get stuck writing only about this one thing. And I’m no Scott Greenfield. So I either have to stop the current “response” here, maybe picking up parts of it as I can at intermittent future points, or I’m never going to get to blog about anything else.

Fifth and finally, I think I am going to write a bit more about the meatspace metaphor. Kerr’s “technology neutrality” and Gibson’s “meatspace” make for an interesting intersect. And don’t tell me I was reading your mind. So, who knows? Maybe that will be my next blog post.

If this article gets any attention, and I have any opportunity to revisit the issues as part of an ongoing discussion, I will be happy to do so. For now, it is what it is.

I hope you enjoy reading it more than I enjoyed writing it.

  1. The Federalist Papers, No. 48, at p. 305 (James Madison) (Clinton Rossiter, ed., Signet Classic 2003).
  2. Steven Pinker, The Blank Slate: The Modern Denial of Human Nature(2002), p. 365.
  3. “Applying the Fourth Amendment to the Internet: A General Approach” (2010) 62 Stan.L.Rev. 1005, 1007.
  4. Kerr, supra, 62 Stan.L.Rev. at 1011, emphasis added.
  5. U.S. Const., amend. iv.
  6. RTE News, “Bush denies spying on US citizens” (Update 9/26/2016: link broken) (May 12, 2006).
  7. Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search & Seizure, 1789-1868 (2006) p. 297, n. 92 col. 2.
  8. Kerr, supra, 62 Stan.L.Rev at 1020, emphasis added.
  9. Kerr, supra, 62 Stan.L.Rev. at 1020.
  10. Kerr, supra, 62 Stan.L.Rev at 1020.
  11. U.S. Const., amend. iv.
  12. The Federalist Papers, No. 10, at p. 75 (James Madison) (Clinton Rossiter, ed., Signet Classic 2003), emphasis added.
  13. Taslitz, supra, at 62.
  14. Akhil Reed Amar, America’s Constitution: A Biography (2005) p. 62, emphasis in original.
  15. Kerr, supra, 62 Stan.L.Rev. at 1032.
  16. U.S. Const., amend. iv.
  17. Kerr, supra, 62 Stan.L.Rev. at 1034.
  18. Kerr, supra, 62 Stan.L.Rev. at 1034.
  19. Kerr, supra, 62 Stan.L.Rev. at 1034.
  20. Whatever errors the Katz Court may have made in that regard are irrelevant to my argument. The fact that the Supreme Court has whittled away at the Constitution since at least a few years after it was written does not mean I have to accept that — this is one reason I think our nation is headed for another Revolution: we’ve reached the point where thanks to the courts, including the Supreme Court, our Constitution no longer does what it was intended to do.
  21. “State,” of course, is used in the technical meaning of “the government” and thanks to the Fourteenth Amendment applies to both state and federal governments.
  22. Nannie McCormick Coleman, The Constitution and Its Framers (1910) pp. 542-543, emphasis added. Interesting lady, that Mrs. Coleman. You can read more about her here: The book, by the way, was recommended for use as a textbook on the Constitution by the Daughters of the American Revolution.
  23. Taslitz, supra, at 50.