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2007 Stan. Tech. L. Rev. 3 (2007)

handle is hein.journals/stantlr2007 and id is 1 raw text is: I Stanford Technology Law Review First Principles of Communications Privacy SUSAN FREIWALD CITE AS: 2007 STAN. TECH. L. REV. 3 PART I. INTRODUCTION Recent clashes among administration officials intent on rooting out terrorism and those who decry intrusions on personal privacy have raised questions about the constitutional regulation of electronic surveillance. For example, the NSA recently claimed that the president's inherent powers under Article II justified its domestic wiretapping program. A district court in Detroit disagreed, and determined that the program violated the First and Fourth Amendments and separation of powers.' Yet when it comes to challenges to electronic surveillance for law enforcement purposes, the cases have largely involved interpretations of the Electronic Communications Privacy Act (ECPA), a law passed in 1986 to bring surveillance regulation into the age of electronic communications.2 Since the Supreme Court delineated what procedural safeguards the Fourth Amendment imposed on traditional wiretapping, back in the 1967 cases of Katz v. United States3 and Berger v. New York,4 courts have avoided subjecting questions about modern electronic surveillance practices to constitutional scrutiny. In Katz and Berger, the Supreme Court established that electronic eavesdropping constituted a Fourth Amendment search. Because of the particular dangers of abusing electronic surveillance, the Court required that agents who wanted to conduct it had to surmount several procedural hurdles significantly more demanding than the probable cause warrant needed to search a home.5 Congress incorporated those hurdles into the Wiretap Act that it passed the next year.6 But the Supreme Court has stayed out of the regulation of modern electronic surveillance as use of the intemet and related electronic communications has supplanted use of the telephone. Lower courts have avoided constitutional review as well. In fact, a case currently pending in the Sixth Circuit, Warshak v. United States,7 poses the first constitutional challenge to the Stored Communications Act, (SCA), which was passed in 1986 as a subset of the ECPA.8 No Article III * 0 2007, Susan Freiwald. Professor, University of San Francisco School of Law. I thank Alex Miller andjohn Cannavino for their excellent research assistance as well as the student editors on the Stanford Technology Law Journal, particularly Henry Huang and Leslie Liang. I also thank Patricia L. Bellia and the commentators at the symposium, Jennifer Granick, Ori Kerr, and Eri Murphy, for their invaluable comments. I See Am. Civil Liberties Union v. Nat'l Sec. Agency, 438 F. Supp. 2d 754 (E.D. Mich. 2006). 2 Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986) (codified as amended in scattered sections of U.S.C.). 3 Katz v. United States, 389 U.S. 347, 361 (1967). 4 Berger v. New York, 388 U.S. 41, 60 (1967). s See znra Part IVA for a discussion of those requirements. 6 Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, Title III, 82 Stat. 212 (codified as amended at 18 U.S.C. 2510-2522). 7 See Warshak v. United States, No. 1:06-CV-357, 2006 U.S. Dist. LEXIS 50076 (S.D. Ohio Jul. 26, 2006). 8 See Stored Wired and Electronic Communications and Transactional Records Access, Pub. L. No. 99-508, 201, 100 Stat. 1848, 1860 (codified as amended at 18 U.S.C. § 2701-12). Copyright C 2007 Stanford Technology Law Review. All Rights Reserved.

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