![handle is hein.journals/stantlr2005 and id is 1 raw text is:
_Stanford Technology Law Review
Almost Private: Pen Registers, Packet Sniffers, and
Privacy at the Margin
DAVID MCPHIE*
CITE AS: 2005 STAN. TECH. L. REv. 1
It may be that it is the obnoxious thing in its mildest and least repulsive form; but
illegitimate and unconstitutional practices get their first footing in that way, namely, by silent
approaches and slight deviations from legal modes of procedure. [W]e decline to go
beyond [established Fourth Amendment law] by even a fraction of an inch.'
Servers don't gossip, proclaims a recent bus-side advertising campaign.2 The ad is for an online
job search service; the promotional hook is that, when it comes to particularly sensitive and private
matters, one is clearly better off trusting a machine than a human.
The trouble is that when it comes to computerized, networked communications, no one is yet
quite sure whether to buy that line or not. This uncertainty goes to the heart of the enormous public
debate spawned by the development of the Internet, with its dual promises of perfect anonymity and
perfect tracking.3 To borrow from an old joke, with the advent of the Internet age, society has
reached the end of all of its privacy problems-but the question is, which end?
The question of the scope of privacy in communications becomes especially urgent whenever it
is the government that is doing the listening. Indeed, the issue becomes one of constitutional
moment because it implicates Fourth Amendment guarantees against unreasonable searches and
seizures. A pair of Supreme Court cases illustrates well the acute ambiguities in the law. The 1967
case Katz v. United States holds that the Fourth Amendment bars the government from listening in on
private phone conversations without complying with a hefty set of procedural requirements,
including a showing of probable cause of illegality before a duly authorized magistrate.4 On the other
hand, Smith v. Ma/land, decided just twelve years later, holds that the government may freely collect
phone numbers dialed from a home telephone (using a pen register device) for any or no reason,
no authorization required, and all without triggering any real Fourth Amendment analysis.5
Now, in a practical sense these cases are not ambiguous at all, as they set down a pair of clear
rules highly amenable to straightforward application. Thus, the ambiguity lies not in their application,
J.D., Harvard Law School, June 2003.
Silverman v. United States, 365 U.S. 505, 512 (1961).
2 Advertisement, for CareerSearch.com (seen by the author on a city bus in Boston).
See, eg., Julie E. Cohen, A Rzght to Read Anonymously: A Closer Look at Copyright Management in Cyberspace, 28 CONN. L. REv.
981 (1996) ([T]he new information age is turning out to be as much an age of information about readers as an age of information
for readers.); Jonathan Zittrain, What the Publisher Can Teach the Patient: Intellectual Property and P a 7 in an Era of Trusted Pmvication, 52
STAN. L. REv. 1201 (2000) (suggesting the application of copyright-protecting technologies developed for the Internet to systems
providing better privacy in patient records); Jonathan P. Cody, Protecting Pnvag over the Internet. Has the Time Come to Abandon Sef
Regulation, 48 CATH. U. L. REV. 1183, 1184 (1999) (contending that collection and use of personal identifiable information have
never been cheaper or easier than in the online environment.').
4 389 U.S. 347 (1967).
5 442 U.S. 735 (1979).
Copyright C 2005 Stanford Technology Law Review. A/i Rights Reserved.](ViewImageLocal?handle=hein.journals/stantlr2005&div=1&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most