Katz Cradle: Holding On to Fourth Amendment Parity in an Age of Evolving Electronic Communication

TABLE OF CONTENTS INTRODUCTION I. THE FOUNDATIONS OF CONTEMPORARY FOURTH AMENDMENT ANALYSIS A. Communication at the Founding: Ex Parte Jackson and the Protection Afforded to Letters B. Communication Evolves: Embracing the Telephone in Katz and Justice Harlan's Reasonable Expectation of Privacy C. Contents in Context: Business Records and the Third-Party Doctrine II. CONGRESS INTERVENES: THE ELECTRONIC COMMUNICATIONS PROTECTION ACT A. The Federal Wiretap Act B. The Stored Communication Act III. RESTORING PARITY: A TECHNOLOGY-NEUTRAL APPROACH FOR ELECTRONIC COMMUNICATIONS IN ACCORDANCE WITH KATZ, MILLER, AND SMITH A. The Transactional Relevance Test: A Technology-Neutral Definition for Noncontent B. Assigning Protections Under the Transactional Relevance Test CONCLUSION INTRODUCTION The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. (1) The Fourth Amendment provides for [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. (2) As with many phrases of the Constitution, this right has become a font of considerable complexity as courts have expanded its reach to cover a wealth of interactions between the government and individuals. (3) Perhaps no other set of interactions better illustrates this complexity than the current laws and interpretations defining the Fourth Amendment's application to electronic forms of communication. (4) Despite the prevalence of electronic communication in the everyday interactions of the average American, (5) the current landscape of statutory authority and judicial interpretation on the government's ability to seize electronic communications can best be described as outdated and disjointed. (6) Yet one could hardly fault legislative sloth and judicial trepidation given the breakneck pace that has characterized the last decade of technological innovation. E-mail has left the laboratories of college campuses for middle schoolers' iPhones. In a matter of a few years, Myspace rose and fell to Facebook's present dominance. (7) Twitter hashtags chart trends in real time. But beyond the pack aging--an unending variety of ways that programmers can repack and reinvent the binary string of ones and zeros that now allows us to e-mail and video chat--the messages remain the same. People share news; they gossip. Secrets are told and confidences kept or broken. This Note stems from the simple belief that if the message remains the same, the Fourth Amendment should as well. Whether by letter, telephone, e-mail, or video, the Fourth Amendment should ensure parity between the mediums that transmit any given message. Part I begins with a review of the Supreme Court's early constitutional jurisprudence on the intersection of government surveillance in communication and the Fourth Amendment. This review is centered on the Court's reasoning in Katz v. United States. (8) Katz was the genesis of contemporary thought on Fourth Amendment protections for the seizure of electronic communications. In Katz, the Court determined that the Fourth Amendment applied to the government's eavesdropping on a telephone call from a public pay phone, despite the lack of a physical trespass by the government. (9) The language in Katz stating the Fourth Amendment protects people, not places specifically rejects a property-based approach to Fourth Amendment analysis. (10) Likewise, the Court's statement that what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected, supports the notion that the protections of the Fourth Amendment should not be applied relative to the technology used to communicate the message. (11) In the aftermath of its landmark decision in Katz, the Court narrowed the potential scope of its language in United States v. …