What big eyes and ears you have!: A new regime for covert governmental surveillance

Fordham Law Review

Volumn 70, Issue 3, 2001, Pages 1017-1108

  Young, Mark G ^a  

^a NONE

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EID: 0347752489     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (598)

1. Super Bowl Snooping, Editorial, N.Y. Times, Feb. 4, 2001, § 4 (Week in Review), at 16.
2. Louis Sahagun & Josh Meyer, Secret Cameras at Super Bowl Scanned Crowd for Criminals, L.A. Times, Feb. 1, 2001, at Al ("In a command post at Raymond James Stadium in Tampa, Fla., the digitized images of fans and workers were cross-checked against files of local police, the FBI and state agencies at the rate of a million images a minute."). Although the faces entered into the database were apparently for terrorist suspects, the 19 matches that resulted from this surveillance were mostly pickpockets and con artists. See id.
3. See John D. Woodward Jr., And Now, the Good Side of Facial Profiling, Wash. Post, Feb. 4, 2001, at B4 (advocating a pragmatic, middle-ground approach to surveillance which recognizes the value of these techniques but which also attempts to minimize their privacy-intruding aspects).
4. See, e.g., Super Bowl Snooping, supra note 1; Super Day for Big Brother, Editorial, L.A. Times, Feb. 2, 2001, at B8. The New York Times published two letters to the editors that reflected this schism between views. See At the Game, Big Brother is Watching You, Letters to the Editor, N.Y. Times, Feb. 6, 2001, at A18. One letter- writer acquiesced in the need for the intrusion given the risk of terrorism, stating that "Terrorism is a threat of major proportions, and distasteful as it seems, surveillance of public places and tools of facial character recognition may be necessary." Id. The other was distressed by the affront to the notion of privacy and the inability to "observe the observers." This person stated: "When video and other high-tech equipment are used by government agencies to randomly and surreptitiously monitor citizens while they are out in public (and worse, capture their images), the expectation of being able to 'observe the observers' is violated." Id.
5. See, e.g., Super Bowl Snooping, supra note 1; Super Day for Big Brother, Editorial, L.A. Times, Feb. 2, 2001, at B8. The New York Times published two letters to the editors that reflected this schism between views. See At the Game, Big Brother is Watching You, Letters to the Editor, N.Y. Times, Feb. 6, 2001, at A18. One letter- writer acquiesced in the need for the intrusion given the risk of terrorism, stating that "Terrorism is a threat of major proportions, and distasteful as it seems, surveillance of public places and tools of facial character recognition may be necessary." Id. The other was distressed by the affront to the notion of privacy and the inability to "observe the observers." This person stated: "When video and other high-tech equipment are used by government agencies to randomly and surreptitiously monitor citizens while they are out in public (and worse, capture their images), the expectation of being able to 'observe the observers' is violated." Id.
6. See, e.g., Super Bowl Snooping, supra note 1; Super Day for Big Brother, Editorial, L.A. Times, Feb. 2, 2001, at B8. The New York Times published two letters to the editors that reflected this schism between views. See At the Game, Big Brother is Watching You, Letters to the Editor, N.Y. Times, Feb. 6, 2001, at A18. One letter-writer acquiesced in the need for the intrusion given the risk of terrorism, stating that "Terrorism is a threat of major proportions, and distasteful as it seems, surveillance of public places and tools of facial character recognition may be necessary." Id. The other was distressed by the affront to the notion of privacy and the inability to "observe the observers." This person stated: "When video and other high-tech equipment are used by government agencies to randomly and surreptitiously monitor citizens while they are out in public (and worse, capture their images), the expectation of being able to 'observe the observers' is violated." Id.
7. See Serge Schmemann, U.S. Attacked: Hijacked Jets Destroy Twin Towers and Hit Pentagon in Day of Terror, N.Y. Times, Sept. 12, 2001, at A1.
8. Cf. Neil Munro & Peter H. Stone, A Tougher Balancing Act, 33 Nat'l J. 2852 (2001) (noting how the attack will likely lead to pressure and calls for increased law-enforcement capabilities, particularly in the area of surveillance, and stating that "[privacy] advocates now face a potentially insurmountable political problem: a wave of public disgust and fear that will likely help boost police budgets and surveillance authority nationwide"); David Barstow, Envisioning an Expensive Future in the Brave New World of Fortress New York, N.Y. Times, Sept. 16, 2001, at 16 (discussing how attitudes about security are likely to change); Marcia Coyle & Bob Van Voris, A New Landscape as U.S. Seeks to Protect Itself, Nat'l L.J., Sept. 24, 2001, at A4 (discussing likely changes in attitudes about security vis-à-vis privacy, and possible legislative measures); Linda Greenhouse, The Clamor of a Free People, N.Y. Times, Sept. 16, 2001, § 4 (Week in Review), at 1 (noting that due to recent events the balance between security and liberty "will now be recalibrated to reflect both new realities and new perceptions").
9. Cf. Neil Munro & Peter H. Stone, A Tougher Balancing Act, 33 Nat'l J. 2852 (2001) (noting how the attack will likely lead to pressure and calls for increased law- enforcement capabilities, particularly in the area of surveillance, and stating that "[privacy] advocates now face a potentially insurmountable political problem: a wave of public disgust and fear that will likely help boost police budgets and surveillance authority nationwide"); David Barstow, Envisioning an Expensive Future in the Brave New World of Fortress New York, N.Y. Times, Sept. 16, 2001, at 16 (discussing how attitudes about security are likely to change); Marcia Coyle & Bob Van Voris, A New Landscape as U.S. Seeks to Protect Itself, Nat'l L.J., Sept. 24, 2001, at A4 (discussing likely changes in attitudes about security vis-à-vis privacy, and possible legislative measures); Linda Greenhouse, The Clamor of a Free People, N.Y. Times, Sept. 16, 2001, § 4 (Week in Review), at 1 (noting that due to recent events the balance between security and liberty "will now be recalibrated to reflect both new realities and new perceptions").
10. Cf. Neil Munro & Peter H. Stone, A Tougher Balancing Act, 33 Nat'l J. 2852 (2001) (noting how the attack will likely lead to pressure and calls for increased law- enforcement capabilities, particularly in the area of surveillance, and stating that "[privacy] advocates now face a potentially insurmountable political problem: a wave of public disgust and fear that will likely help boost police budgets and surveillance authority nationwide"); David Barstow, Envisioning an Expensive Future in the Brave New World of Fortress New York, N.Y. Times, Sept. 16, 2001, at 16 (discussing how attitudes about security are likely to change); Marcia Coyle & Bob Van Voris, A New Landscape as U.S. Seeks to Protect Itself, Nat'l L.J., Sept. 24, 2001, at A4 (discussing likely changes in attitudes about security vis-à-vis privacy, and possible legislative measures); Linda Greenhouse, The Clamor of a Free People, N.Y. Times, Sept. 16, 2001, § 4 (Week in Review), at 1 (noting that due to recent events the balance between security and liberty "will now be recalibrated to reflect both new realities and new perceptions").
11. Cf. Neil Munro & Peter H. Stone, A Tougher Balancing Act, 33 Nat'l J. 2852 (2001) (noting how the attack will likely lead to pressure and calls for increased law- enforcement capabilities, particularly in the area of surveillance, and stating that "[privacy] advocates now face a potentially insurmountable political problem: a wave of public disgust and fear that will likely help boost police budgets and surveillance authority nationwide"); David Barstow, Envisioning an Expensive Future in the Brave New World of Fortress New York, N.Y. Times, Sept. 16, 2001, at 16 (discussing how attitudes about security are likely to change); Marcia Coyle & Bob Van Voris, A New Landscape as U.S. Seeks to Protect Itself, Nat'l L.J., Sept. 24, 2001, at A4 (discussing likely changes in attitudes about security vis-à-vis privacy, and possible legislative measures); Linda Greenhouse, The Clamor of a Free People, N.Y. Times, Sept. 16, 2001, § 4 (Week in Review), at 1 (noting that due to recent events the balance between security and liberty "will now be recalibrated to reflect both new realities and new perceptions").
12. See Lizette Alvarez, Spying on Terrorists and Thwarting Them Gains New Urgency, N.Y. Times, Sept. 14, 2001, at A17 (reporting the Senate's late-night passage two days after the attacks of an amendment with significant implications for the law of surveillance that was attached to an appropriations bill for the Department of Justice); Jonathan Krim, Anti-Terror Push Stirs Fears for Liberties: Rights Groups Unite To Seek Safeguards, Wash. Post, Sept. 18, 2001, at A17 (reporting the introduction by Attorney General John Ashcroft of a revised and expanded anti- terrorism legislative proposal). See infra notes 271-83 and accompanying text for a further discussion of these legislative proposals. Shortly after passage of the USA Patriot Act, Attorney General John Ashcroft authorized the Bureau of Prisons to eavesdrop on communications between "inmates" and their attorneys upon a "specific determination that such actions are reasonably necessary in order to deter future acts of violence or terrorism." National Security; Prevention of Acts of Violence and Terrorism, 66 Fed. Reg. 55,062, 55,064 (Oct. 31, 2001) (amending 28 C.F.R. pts. 500, 501); see also Neil A. Lewis & Christopher Marquis, Longer Visa Waits for Arabs; Stir over U.S. Eavesdropping, N.Y. Times, Nov. 10, 2001, at A1. Characterizing the regulation as an interim rule and invoking the good-cause and the foreign-affairs exceptions to the notice-and-comment requirement of the Administrative Procedure Act, see 5 U.S.C. § 553(a)(1), (b)(B) (1994), Attorney General Ashcroft implemented the rule without public comment. 66 Fed. Reg. at 55,064-65. Although enacted to deter terrorism, the new rule potentially permits eavesdropping on attorney-client communications in other situations. For one, the regulation defines "inmate" broadly to include "all persons in the custody of the Federal Bureau of Prisons or Bureau contract facilities. . . ; D.C. Code felony offenders; and persons held as witnesses, detainees, or otherwise." 66 Fed. Reg. at 55,065 (amending 28 C.F.R. § 501.1(c)) (emphasis added). Second, the standard articulated in the rule is broad and vague: "[A]ll communications between inmate and attorneys may be monitored, to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism." 66 Fed. Reg. at 55,066 (amending 28 C.F.R. § 501.3(d)). Third, it is not clear that this provision is subject to any time limitations, since section 501.3(d) does not explicitly subject attorney-client eavesdropping to the time limitations for other "special administrative measures" contained in section 501.3(a). See id. Nevertheless, the regulations require that the inmate and attorney be notified of the surveillance prior to its initiation, unless otherwise authorized by a court. Id.
13. See Lizette Alvarez, Spying on Terrorists and Thwarting Them Gains New Urgency, N.Y. Times, Sept. 14, 2001, at A17 (reporting the Senate's late-night passage two days after the attacks of an amendment with significant implications for the law of surveillance that was attached to an appropriations bill for the Department of Justice); Jonathan Krim, Anti-Terror Push Stirs Fears for Liberties: Rights Groups Unite To Seek Safeguards, Wash. Post, Sept. 18, 2001, at A17 (reporting the introduction by Attorney General John Ashcroft of a revised and expanded anti-terrorism legislative proposal). See infra notes 271-83 and accompanying text for a further discussion of these legislative proposals. Shortly after passage of the USA Patriot Act, Attorney General John Ashcroft authorized the Bureau of Prisons to eavesdrop on communications between "inmates" and their attorneys upon a "specific determination that such actions are reasonably necessary in order to deter future acts of violence or terrorism." National Security; Prevention of Acts of Violence and Terrorism, 66 Fed. Reg. 55,062, 55,064 (Oct. 31, 2001) (amending 28 C.F.R. pts. 500, 501); see also Neil A. Lewis & Christopher Marquis, Longer Visa Waits for Arabs; Stir over U.S. Eavesdropping, N.Y. Times, Nov. 10, 2001, at A1. Characterizing the regulation as an interim rule and invoking the good-cause and the foreign-affairs exceptions to the notice-and-comment requirement of the Administrative Procedure Act, see 5 U.S.C. § 553(a)(1), (b)(B) (1994), Attorney General Ashcroft implemented the rule without public comment. 66 Fed. Reg. at 55,064-65. Although enacted to deter terrorism, the new rule potentially permits eavesdropping on attorney-client communications in other situations. For one, the regulation defines "inmate" broadly to include "all persons in the custody of the Federal Bureau of Prisons or Bureau contract facilities. . . ; D.C. Code felony offenders; and persons held as witnesses, detainees, or otherwise." 66 Fed. Reg. at 55,065 (amending 28 C.F.R. § 501.1(c)) (emphasis added). Second, the standard articulated in the rule is broad and vague: "[A]ll communications between inmate and attorneys may be monitored, to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism." 66 Fed. Reg. at 55,066 (amending 28 C.F.R. § 501.3(d)). Third, it is not clear that this provision is subject to any time limitations, since section 501.3(d) does not explicitly subject attorney-client eavesdropping to the time limitations for other "special administrative measures" contained in section 501.3(a). See id. Nevertheless, the regulations require that the inmate and attorney be notified of the surveillance prior to its initiation, unless otherwise authorized by a court. Id.
14. See Lizette Alvarez, Spying on Terrorists and Thwarting Them Gains New Urgency, N.Y. Times, Sept. 14, 2001, at A17 (reporting the Senate's late-night passage two days after the attacks of an amendment with significant implications for the law of surveillance that was attached to an appropriations bill for the Department of Justice); Jonathan Krim, Anti-Terror Push Stirs Fears for Liberties: Rights Groups Unite To Seek Safeguards, Wash. Post, Sept. 18, 2001, at A17 (reporting the introduction by Attorney General John Ashcroft of a revised and expanded anti- terrorism legislative proposal). See infra notes 271-83 and accompanying text for a further discussion of these legislative proposals. Shortly after passage of the USA Patriot Act, Attorney General John Ashcroft authorized the Bureau of Prisons to eavesdrop on communications between "inmates" and their attorneys upon a "specific determination that such actions are reasonably necessary in order to deter future acts of violence or terrorism." National Security; Prevention of Acts of Violence and Terrorism, 66 Fed. Reg. 55,062, 55,064 (Oct. 31, 2001) (amending 28 C.F.R. pts. 500, 501); see also Neil A. Lewis & Christopher Marquis, Longer Visa Waits for Arabs; Stir over U.S. Eavesdropping, N.Y. Times, Nov. 10, 2001, at A1. Characterizing the regulation as an interim rule and invoking the good-cause and the foreign-affairs exceptions to the notice-and-comment requirement of the Administrative Procedure Act, see 5 U.S.C. § 553(a)(1), (b)(B) (1994), Attorney General Ashcroft implemented the rule without public comment. 66 Fed. Reg. at 55,064-65. Although enacted to deter terrorism, the new rule potentially permits eavesdropping on attorney-client communications in other situations. For one, the regulation defines "inmate" broadly to include "all persons in the custody of the Federal Bureau of Prisons or Bureau contract facilities. . . ; D.C. Code felony offenders; and persons held as witnesses, detainees, or otherwise." 66 Fed. Reg. at 55,065 (amending 28 C.F.R. § 501.1(c)) (emphasis added). Second, the standard articulated in the rule is broad and vague: "[A]ll communications between inmate and attorneys may be monitored, to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism." 66 Fed. Reg. at 55,066 (amending 28 C.F.R. § 501.3(d)). Third, it is not clear that this provision is subject to any time limitations, since section 501.3(d) does not explicitly subject attorney-client eavesdropping to the time limitations for other "special administrative measures" contained in section 501.3(a). See id. Nevertheless, the regulations require that the inmate and attorney be notified of the surveillance prior to its initiation, unless otherwise authorized by a court. Id.
15. See Krim, supra note 7 ("A coalition of public interest groups from across the political spectrum has formed to try to stop Congress and the Bush administration from rushing to enact counterterrorism measures before considering their effect on Americans' privacy and civil rights."); see also Greenhouse, supra note 6 (querying "at what point do security measures start to corrode the very society they are designed to protect?" and noting that times of crisis, "deep insecurity, grief and anger," which most test our commitment to the ideals of liberty, "in fact have often evoked the worst of our national instincts"); The Home Front: Security and Liberty, Editorial, N.Y. Times, Sept. 23, 2001, § 4 (Week in Review), at 16 (stating that the legislative measure proposed by the Bush administration after the attack contained some useful steps, but warning that "many of the ideas being shopped by the Bush administration would reduce constitutional protections with no obvious benefit to national security"); The National Defense, Editorial, N.Y. Times, Sept. 12, 2001, at A26 (urging measures to counteract terrorism but cautioning about and advocating for the preservation of constitutional rights and stating "[t]here must be an exacting examination of how the country can face this threat without sacrificing its liberties"); Electronic Frontier Foundation, EFF Statement on Pro-Surveillance Criticism (Sept. 21, 2001), at http://www.eff.org/Privacy/Surveillance/20010921_eff_statement.html (explaining EFF's opposition to some of the legislative measures to augment law enforcement's surveillance capabilities - 1) that the proposed changes are being considered and passed in great haste and with minimal discourse, 2) that the proposed changes, though putatively aimed at terrorism, are "broad ranging, permanent reductions in civil liberties and privacy of all Americans," 3) that portions of the proposals "appear to be part of a general law enforcement 'wish list' rather than a specific response to terrorism," and 4) that there is no indication that the present legal regime hampered law enforcement's ability to detect or investigate the acts) (on file with the Fordham Law Review).
16. See Krim, supra note 7 ("A coalition of public interest groups from across the political spectrum has formed to try to stop Congress and the Bush administration from rushing to enact counterterrorism measures before considering their effect on Americans' privacy and civil rights."); see also Greenhouse, supra note 6 (querying "at what point do security measures start to corrode the very society they are designed to protect?" and noting that times of crisis, "deep insecurity, grief and anger," which most test our commitment to the ideals of liberty, "in fact have often evoked the worst of our national instincts"); The Home Front: Security and Liberty, Editorial, N.Y. Times, Sept. 23, 2001, § 4 (Week in Review), at 16 (stating that the legislative measure proposed by the Bush administration after the attack contained some useful steps, but warning that "many of the ideas being shopped by the Bush administration would reduce constitutional protections with no obvious benefit to national security"); The National Defense, Editorial, N.Y. Times, Sept. 12, 2001, at A26 (urging measures to counteract terrorism but cautioning about and advocating for the preservation of constitutional rights and stating "[t]here must be an exacting examination of how the country can face this threat without sacrificing its liberties"); Electronic Frontier Foundation, EFF Statement on Pro-Surveillance Criticism (Sept. 21, 2001), at http://www.eff.org/Privacy/Surveillance/20010921_eff_statement.html (explaining EFF's opposition to some of the legislative measures to augment law enforcement's surveillance capabilities - 1) that the proposed changes are being considered and passed in great haste and with minimal discourse, 2) that the proposed changes, though putatively aimed at terrorism, are "broad ranging, permanent reductions in civil liberties and privacy of all Americans," 3) that portions of the proposals "appear to be part of a general law enforcement 'wish list' rather than a specific response to terrorism," and 4) that there is no indication that the present legal regime hampered law enforcement's ability to detect or investigate the acts) (on file with the Fordham Law Review).
17. See Krim, supra note 7 ("A coalition of public interest groups from across the political spectrum has formed to try to stop Congress and the Bush administration from rushing to enact counterterrorism measures before considering their effect on Americans' privacy and civil rights."); see also Greenhouse, supra note 6 (querying "at what point do security measures start to corrode the very society they are designed to protect?" and noting that times of crisis, "deep insecurity, grief and anger," which most test our commitment to the ideals of liberty, "in fact have often evoked the worst of our national instincts"); The Home Front: Security and Liberty, Editorial, N.Y. Times, Sept. 23, 2001, § 4 (Week in Review), at 16 (stating that the legislative measure proposed by the Bush administration after the attack contained some useful steps, but warning that "many of the ideas being shopped by the Bush administration would reduce constitutional protections with no obvious benefit to national security"); The National Defense, Editorial, N.Y. Times, Sept. 12, 2001, at A26 (urging measures to counteract terrorism but cautioning about and advocating for the preservation of constitutional rights and stating "[t]here must be an exacting examination of how the country can face this threat without sacrificing its liberties"); Electronic Frontier Foundation, EFF Statement on Pro-Surveillance Criticism (Sept. 21, 2001), at http://www.eff.org/Privacy/Surveillance/20010921_eff_statement.html (explaining EFF's opposition to some of the legislative measures to augment law enforcement's surveillance capabilities - 1) that the proposed changes are being considered and passed in great haste and with minimal discourse, 2) that the proposed changes, though putatively aimed at terrorism, are "broad ranging, permanent reductions in civil liberties and privacy of all Americans," 3) that portions of the proposals "appear to be part of a general law enforcement 'wish list' rather than a specific response to terrorism," and 4) that there is no indication that the present legal regime hampered law enforcement's ability to detect or investigate the acts) (on file with the Fordham Law Review).
18. See Krim, supra note 7 ("A coalition of public interest groups from across the political spectrum has formed to try to stop Congress and the Bush administration from rushing to enact counterterrorism measures before considering their effect on Americans' privacy and civil rights."); see also Greenhouse, supra note 6 (querying "at what point do security measures start to corrode the very society they are designed to protect?" and noting that times of crisis, "deep insecurity, grief and anger," which most test our commitment to the ideals of liberty, "in fact have often evoked the worst of our national instincts"); The Home Front: Security and Liberty, Editorial, N.Y. Times, Sept. 23, 2001, § 4 (Week in Review), at 16 (stating that the legislative measure proposed by the Bush administration after the attack contained some useful steps, but warning that "many of the ideas being shopped by the Bush administration would reduce constitutional protections with no obvious benefit to national security"); The National Defense, Editorial, N.Y. Times, Sept. 12, 2001, at A26 (urging measures to counteract terrorism but cautioning about and advocating for the preservation of constitutional rights and stating "[t]here must be an exacting examination of how the country can face this threat without sacrificing its liberties"); Electronic Frontier Foundation, EFF Statement on Pro-Surveillance Criticism (Sept. 21, 2001), at http://www.eff.org/Privacy/Surveillance/20010921_eff_statement.html (explaining EFF's opposition to some of the legislative measures to augment law enforcement's surveillance capabilities - 1) that the proposed changes are being considered and passed in great haste and with minimal discourse, 2) that the proposed changes, though putatively aimed at terrorism, are "broad ranging, permanent reductions in civil liberties and privacy of all Americans," 3) that portions of the proposals "appear to be part of a general law enforcement 'wish list' rather than a specific response to terrorism," and 4) that there is no indication that the present legal regime hampered law enforcement's ability to detect or investigate the acts) (on file with the Fordham Law Review).
19. See Krim, supra note 7 ("A coalition of public interest groups from across the political spectrum has formed to try to stop Congress and the Bush administration from rushing to enact counterterrorism measures before considering their effect on Americans' privacy and civil rights."); see also Greenhouse, supra note 6 (querying "at what point do security measures start to corrode the very society they are designed to protect?" and noting that times of crisis, "deep insecurity, grief and anger," which most test our commitment to the ideals of liberty, "in fact have often evoked the worst of our national instincts"); The Home Front: Security and Liberty, Editorial, N.Y. Times, Sept. 23, 2001, § 4 (Week in Review), at 16 (stating that the legislative measure proposed by the Bush administration after the attack contained some useful steps, but warning that "many of the ideas being shopped by the Bush administration would reduce constitutional protections with no obvious benefit to national security"); The National Defense, Editorial, N.Y. Times, Sept. 12, 2001, at A26 (urging measures to counteract terrorism but cautioning about and advocating for the preservation of constitutional rights and stating "[t]here must be an exacting examination of how the country can face this threat without sacrificing its liberties"); Electronic Frontier Foundation, EFF Statement on Pro-Surveillance Criticism (Sept. 21, 2001), at http://www.eff.org/Privacy/Surveillance/20010921_eff_statement.html (explaining EFF's opposition to some of the legislative measures to augment law enforcement's surveillance capabilities - 1) that the proposed changes are being considered and passed in great haste and with minimal discourse, 2) that the proposed changes, though putatively aimed at terrorism, are "broad ranging, permanent reductions in civil liberties and privacy of all Americans," 3) that portions of the proposals "appear to be part of a general law enforcement 'wish list' rather than a specific response to terrorism," and 4) that there is no indication that the present legal regime hampered law enforcement's ability to detect or investigate the acts) (on file with the Fordham Law Review).
20. See infra notes 421-22 and accompanying text.
21. See infra notes 365-67 and accompanying text; see also Kyllo v. United States, 121 S. Ct. 2038, 2045-46 (2001) (criticizing the "intimate details" test).
22. Kyllo v. United States, 121 S. Ct. 2038 (2000).
23. See infra note 222 and accompanying text.
24. See infra notes 197-205 and accompanying text. The prevailing view currently is against recognizing a broad constitutional right to privacy. Despite language in the Ninth Amendment which on its face seems to allow - perhaps even encourage - the recognition of rights that were not specifically created in the Bill of Rights, this view is generally disfavored. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 38 (1980) ("[T]he conclusion that the Ninth Amendment was intended to signal the existence of federal constitutional rights beyond those specifically enumerated in the Constitution is the only conclusion its language seems comfortably able to support."); see id. at 33-34 (describing the Ninth Amendment as the "old constitutional jester" and its disparagement in "sophisticated legal circles").
25. The seminal article on privacy, The Right to Privacy, was written by Samuel D. Warren and Louis D. Brandeis and published in the Harvard Law Review in 1890. See Griswold v. Connecticut, 381 U.S. 479, 510 n.1 (1965) (Black, J., dissenting). Warren and Brandeis were alarmed by the invasiveness of photography. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890). The issue remains highly cogent and there are any number of books and law review articles arguing for and against a constitutional right to privacy. See, e.g., Amitai Etzioni, The Limits of Privacy (1999); The Right to Privacy (Ellen Frankel Paul et al. eds., 2000); Richard A. Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 Sup. Ct. Rev. 173; William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960); Richard C. Turkington, Legacy of the Warren and Brandeis Article: The Emerging Unencumbered Constitutional Right to Informational Privacy, 10 N. Ill. U. L. Rev. 479 (1990).
26. The seminal article on privacy, The Right to Privacy, was written by Samuel D. Warren and Louis D. Brandeis and published in the Harvard Law Review in 1890. See Griswold v. Connecticut, 381 U.S. 479, 510 n.1 (1965) (Black, J., dissenting). Warren and Brandeis were alarmed by the invasiveness of photography. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890). The issue remains highly cogent and there are any number of books and law review articles arguing for and against a constitutional right to privacy. See, e.g., Amitai Etzioni, The Limits of Privacy (1999); The Right to Privacy (Ellen Frankel Paul et al. eds., 2000); Richard A. Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 Sup. Ct. Rev. 173; William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960); Richard C. Turkington, Legacy of the Warren and Brandeis Article: The Emerging Unencumbered Constitutional Right to Informational Privacy, 10 N. Ill. U. L. Rev. 479 (1990).
27. The seminal article on privacy, The Right to Privacy, was written by Samuel D. Warren and Louis D. Brandeis and published in the Harvard Law Review in 1890. See Griswold v. Connecticut, 381 U.S. 479, 510 n.1 (1965) (Black, J., dissenting). Warren and Brandeis were alarmed by the invasiveness of photography. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890). The issue remains highly cogent and there are any number of books and law review articles arguing for and against a constitutional right to privacy. See, e.g., Amitai Etzioni, The Limits of Privacy (1999); The Right to Privacy (Ellen Frankel Paul et al. eds., 2000); Richard A. Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 Sup. Ct. Rev. 173; William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960); Richard C. Turkington, Legacy of the Warren and Brandeis Article: The Emerging Unencumbered Constitutional Right to Informational Privacy, 10 N. Ill. U. L. Rev. 479 (1990).
28. The seminal article on privacy, The Right to Privacy, was written by Samuel D. Warren and Louis D. Brandeis and published in the Harvard Law Review in 1890. See Griswold v. Connecticut, 381 U.S. 479, 510 n.1 (1965) (Black, J., dissenting). Warren and Brandeis were alarmed by the invasiveness of photography. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890). The issue remains highly cogent and there are any number of books and law review articles arguing for and against a constitutional right to privacy. See, e.g., Amitai Etzioni, The Limits of Privacy (1999); The Right to Privacy (Ellen Frankel Paul et al. eds., 2000); Richard A. Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 Sup. Ct. Rev. 173; William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960); Richard C. Turkington, Legacy of the Warren and Brandeis Article: The Emerging Unencumbered Constitutional Right to Informational Privacy, 10 N. Ill. U. L. Rev. 479 (1990).
29. The seminal article on privacy, The Right to Privacy, was written by Samuel D. Warren and Louis D. Brandeis and published in the Harvard Law Review in 1890. See Griswold v. Connecticut, 381 U.S. 479, 510 n.1 (1965) (Black, J., dissenting). Warren and Brandeis were alarmed by the invasiveness of photography. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890). The issue remains highly cogent and there are any number of books and law review articles arguing for and against a constitutional right to privacy. See, e.g., Amitai Etzioni, The Limits of Privacy (1999); The Right to Privacy (Ellen Frankel Paul et al. eds., 2000); Richard A. Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 Sup. Ct. Rev. 173; William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960); Richard C. Turkington, Legacy of the Warren and Brandeis Article: The Emerging Unencumbered Constitutional Right to Informational Privacy, 10 N. Ill. U. L. Rev. 479 (1990).
30. The seminal article on privacy, The Right to Privacy, was written by Samuel D. Warren and Louis D. Brandeis and published in the Harvard Law Review in 1890. See Griswold v. Connecticut, 381 U.S. 479, 510 n.1 (1965) (Black, J., dissenting). Warren and Brandeis were alarmed by the invasiveness of photography. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890). The issue remains highly cogent and there are any number of books and law review articles arguing for and against a constitutional right to privacy. See, e.g., Amitai Etzioni, The Limits of Privacy (1999); The Right to Privacy (Ellen Frankel Paul et al. eds., 2000); Richard A. Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 Sup. Ct. Rev. 173; William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960); Richard C. Turkington, Legacy of the Warren and Brandeis Article: The Emerging Unencumbered Constitutional Right to Informational Privacy, 10 N. Ill. U. L. Rev. 479 (1990).
31. The seminal article on privacy, The Right to Privacy, was written by Samuel D. Warren and Louis D. Brandeis and published in the Harvard Law Review in 1890. See Griswold v. Connecticut, 381 U.S. 479, 510 n.1 (1965) (Black, J., dissenting). Warren and Brandeis were alarmed by the invasiveness of photography. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890). The issue remains highly cogent and there are any number of books and law review articles arguing for and against a constitutional right to privacy. See, e.g., Amitai Etzioni, The Limits of Privacy (1999); The Right to Privacy (Ellen Frankel Paul et al. eds., 2000); Richard A. Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 Sup. Ct. Rev. 173; William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960); Richard C. Turkington, Legacy of the Warren and Brandeis Article: The Emerging Unencumbered Constitutional Right to Informational Privacy, 10 N. Ill. U. L. Rev. 479 (1990).
32. See infra note 414 and accompanying text.
33. See infra Part II.
34. Melissa J. Annis, Electronic Surveillance: Does it Bug You?, USABulletin, Sept. 1997, at 33, 38-39, excerpts reprinted in 9 The Department of Justice Manual § 9-60.202A, at 9-1214.41 (1987) (giving primer on practical aspects and common issues of surveillance).
35. See infra notes 36, 41-42 and accompanying text for statistics on the use of personal computers and cellular telephones.
36. See supra note 2 and accompanying text.
37. Whitfield Diffie & Susan Landau, Privacy on the Line: The Politics of Wiretapping and Encryption, at viii (1998).
38. See infra note 40; cf., e.g., Evans v. State, 314 S.E.2d 421, 424 (Ga. 1984) (noting that "the simplest method of installing a tap . . . would have presented a serious risk of detection by criminal suspects, because it would have caused a drop in voltage measurable by equipment available to commercial gamblers"); Edward V. Long, The Intruders: The Invasion of Privacy by Government and Industry 21 (1966) (noting how people in Nazi Germany tried to evade the Gestapo's surveillance by conducting sensitive conversations in bathrooms or public parks). Indeed, as part of the Communications Assistance for Law Enforcement Act ("CALEA") and at the request of the FBI, Congress required that communications service-providers permit law-enforcement agencies to conduct completely undetectable surveillance. See Office of Technology Assessment, U.S. Congress, Electronic Surveillance in a Digital Age 16 (1995), available at http://www.wws.princeton.edu/∼ota/ [hereinafter OTA, Surveillance in a Digital Age]. The OTA report, which "relies heavily" on an FBI report entitled Law Enforcement's Requirements for Electronic Surveillance, see id. at 15 n.17, notes: Intercepts must be undetectable by the intercept subject or other callers, and known only to the monitoring law enforcement agency and authorized personnel of the service provider responsible for setting up the intercept. In some cases, intercept subjects may use sophisticated equipment to detect intercepts; nonetheless, service providers are obligated only to provide transparency within the limits of their equipment based on industry standards for transmission characteristics. Id. at 22.
39. See infra notes 36, 41-42 and accompanying text. Regarding changes in the telecommunications industry, the congressional Office of Technology Assessment observed in 1995: Technology has raced ahead, the structure of the industry has changed, the number of carriers and services has multiplied; dependence on communications for business and personal life has increased, computers and data are becoming more important than voice traffic for business, and the nation has become enthralled with mobile communication. OTA, Surveillance in a Digital Age, supra note 21, at 1-2.
40. Forcefully articulating the view that the costs of wiretapping outweigh its benefits, then-Attorney General Ramsey Clark stated in 1967 that: Public safety will not be found in wiretapping. Security is to be found in excellence in law enforcement, in courts and in corrections. That excellence has not been demonstrated to include wiretapping. Nothing so mocks privacy as the wiretap and electronic surveillance. They are incompatible with a free society and justified only when that society must protect itself from those who seek to destroy it. 1 Staff of Senate Subcomm. on Constitutional Rights, Comm. of the Judiciary, 93d Cong., Federal Data Bases and Constitutional Rights: A Study of Data Systems on Individuals Maintained by Agencies of the United States Government, at XXX (Comm. Print 1974) [hereinafter Federal Data Banks and Constitutional Rights]. Senator Long stated in his 1966 book The Intruders, "Wiretapping and bugging are undoubtedly helpful to the police in some instances. But experience indicates that their value is limited." Long, supra note 21, at 43. A substantial minority of members on a commission to study and review Title III of the Omnibus Crime Control and Safe Streets Act of 1968 in the mid-1970s concluded that court-authorized surveillance had been used successfully in a limited number of major cases, and has resulted in the conviction of only a few upper-echelon crime figures; more frequently, however, court-authorized surveillance has proved to be costly and generally unproductive, has served to discourage the use of other investigative techniques, and, even under the authorization and supervision of a court, has resulted in substantial invasions of individual privacy. Electronic Surveillance: Report of the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, at xiii (1976) [hereinafter Report of the National Wiretapping Commission].
41. 1 Clifford S. Fishman & Anne T. McKenna, Wiretapping and Eavesdropping § 1:1, at 1-3 (2d ed. 1995). In enacting Title III, the third of four findings that Congress made was: "Organized criminals make extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice." Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, 211 (1968).
42. Annis, supra note 17, at 39 (giving primer on practical aspects and common issues of surveillance). Although the hearing-from-the-horse's-mouth analogy seems to raise the question of the defendant's right against self-incrimination, the Supreme Court held in Olmstead v. United States that a wiretap does not violate the Fifth Amendment. 277 U.S. 438, 462 (1928) (stating "[t]here is no room in the present case for applying the Fifth Amendment unless the Fourth Amendment was first violated" and subsequently finding no Fourth Amendment violation). The Supreme Court in Hoffa v. United States, 385 U.S. 293 (1966), held that a statement by a defendant recorded by an undercover agent was given freely and voluntarily rather than by compulsion and thus did not violate the privilege against self-incrimination. See 1 James G. Carr, The Law of Electronic Surveillance § 2.5(d)(3)(A), at 2-41 to 2-43 (2d ed. 2001). As one hornbook author explained, "The decision in Hoffa has been applied to reject claims of Fifth Amendment violation in cases involving bugging and wiretapping. Recordings lawfully obtained by electronic surveillance can be played at trial without violating the defendant's right to stand mute." See id. at 2-42 (citations omitted).
43. Administrative Office of the U.S. Courts, Wiretap Report 1999: Applications for Orders Authorizing or Approving the Interception of Wire, Oral, and Electronic Communications 7, 32 (2000) [hereinafter Wiretap Report 1999]. These figures do not include wiretaps where the surveillance is conducted with the consent of one party. Id. at 6.
44. See Id. at 9 (noting that "72 percent of all applications for intercepts (978 cases) authorized in 1999 cited drug offenses as the most serious offense under investigation"), 17-20 (listing wiretaps by type and by jurisdiction). According to a federal law-enforcement agent: DEA has recently taken a more aggressive stance on the use of wiretaps in its drug investigations. One of the reasons for this is that wiretaps have proven to be an effective tool in dismantling entire drug organizations. A wiretap can expose the entire conspiracy - across city limits, state lines, and even the country. Also, DEA has recently relaxed its funding restrictions so that case agents are more likely to commit to a wiretap in an investigation that merits [one]. . . . [T]raditional law enforcement techniques are usually not sufficient to [identify and prosecute drug organizations] and a wiretap becomes an automatic consideration. Wiretaps: A DEA Agent's Perspective Interview with Special Agent Mark Styron, USABulletin, Sept. 1997, at 29-30, excerpts reprinted in 9 The Department of Justice Manual § 9-60.202A, at 9-1214.31 to .32 (1987) [hereinafter Interview with Special Agent Styron].
45. See Wiretap Report 1999, supra note 26, at 10. In 1998, telephonic wiretaps were for the first time not the most common method of intercept. See id.
46. According to statistics compiled by the Federal Communications Commission for 2000, 94.5% of U.S. households had a telephone. See Alexander Belinfante, FCC, Telephone Penetration by Income by State 23 tbl.4 (July 2001).
47. Bob Berkel & Lowell Rapaport, Covert Audio Interception 445 (CCS SecuritySource Library, Vol. 1, 1994).
48. In general the entire stretch of the telephone system from the user's handset to the telephone company's central office ("the facility housing the switching system and related equipment that provides telephone services for customers in the immediate geographical area," see OTA, Surveillance in a Digital Age, supra note 21, at 72) is vulnerable to interception. Berkel & Rapaport, supra note 30, at 447-48. The telephone handset converts sound into an electrical signal, which is then transmitted to the central office along a single continuous strand of wire and which can easily be detected from outside the wire. Id. at 464-65. Once the electrical signals reach the central office, however, they are co-mingled with other conversations and sent along "trunk lines" that consist of large-bandwidth media; at this point it is much more difficult if not impossible to pick out one conversation from another. Id. at 446.
49. See OTA, Surveillance in a Digital Age, supra note 21, at 2.
50. "Switches" are the machines that route telephone calls throughout the entire telephone network. See Id at 38; American National Standard, Telecom Glossary 2000 at http://www.its.bldrdoc.gov/projects/telecomglossary2000/.
51. New communications services, such as caller ID and call forwarding, made possible by these modern switches apparently could be used to thwart a surveillance operation, for example by redirecting calls away from a line suspected of being tapped. See OTA, Surveillance in a Digital Age, supra note 21, at 2. Similarly, high-speed fiber-optics lines and packet-switching make it far more difficult to intercept telephone calls in the long-haul transmission lines. As will be discussed below, see infra notes 109-10 and accompanying text, the FBI has succeeded in getting Congress to enact changes in the law of wiretapping to overcome some of these changes. More than merely maintaining the status quo, it appears that the FBI has successfully used these alleged foils to effective surveillance to actually expand their capabilities.
52. See OTA, Surveillance in a Digital Age, supra note 21, at 2. For example, these computerized switches enable law-enforcement agents to be electronically patched into a telephone call, making it nearly impossible for the target to detect the surveillance. Additionally, by leasing another telephone line from the phone company, a law-enforcement agency can conduct its surveillance from virtually any location, including its own offices. See id. at 19-20, 40-41; see, e.g., Evans v. State, 314 S.E.2d 421, 424 (Ga. 1984) (describing the process of setting up a wiretap).
53. The explosive growth of cellular telephones is a recent and very significant development in the United States. According to the Department of Commerce, "[i]n less than 20 years, the U.S. wireless industry has blossomed from virtually nothing to one with 100 million subscribers, and it continues to grow at a rate of 25 to 30 percent annually." Nat'l Telecomms. and Info. Admin., U.S. Dep't of Commerce, Annual Report 2000, at http://www.ntia.doc.gov/ntiahome/annualrpt/2001/ 2000annrpt.htm.
54. See supra note 31 and accompanying text. Since cellular telephone calls are carried over airwaves, they can be detected by anyone in the vicinity with a scanner that covers the particular frequency on which the call is being carried. See generally FCC, Fact Sheet: Interception and Divulgence of Radio Communications (June 1999), available at http://www.fcc.gov/Bureaus/Common_Carrier/Factsheets/ investigation.html (on file with the Fordham Law Review). However, unlike a telephone call over a land-line which is carried from the premises to the central office by a specific and identifiable wire, the precise frequency assigned to a particular person will vary each time the user makes or receives a call, and will change to a different frequency if the caller moves from one cell site to another cell site during the conversation. See Cellular Telecomms. & Internet Ass'n, For the Consumer: Howitworks, at http://www.wow-com.com/consumer/howitworks/ (last visited Oct. 25, 2001) (on file with the Fordham Law Review). Furthermore, digital cellular telephone calls are encoded and encrypted and therefore more difficult to intercept between the handset and the cell-site than analog cellular phones or cordless telephones. See Market Sense: Cell Phones Facts Fiction Frequency, at http://www.fcc.gov/marketsense/cellphone.html ("If you are concerned about whether your conversation will be overheard, digital signals are considered more secure because the sophistication and complexity of a digital system makes interception of calls virtually impossible."). However, the encryption scheme commonly used for digital cellular telephony can be readily cracked by a standard desktop computer. See Diffie & Landau, supra note 20, at 26-27.
55. See Interview with Special Agent Styron, supra note 27.
56. "Triggerfish" is the product name of a technology that will "pluck cell calls out of the air." Richard Willing, Government Wiretapping Sets Record: Fax Machines, Cell Phones, Pagers and E-mail Targeted, USA Today, May 3, 2000, at 3A; Richard Willing, Technology Boosts Government Wiretaps (June 7, 2000), at www.usatoday.com/life/cyber/tech/cth831.htm (on file with the Fordham Law Review).
57. "Triggerfish" is the product name of a technology that will "pluck cell calls out of the air." Richard Willing, Government Wiretapping Sets Record: Fax Machines, Cell Phones, Pagers and E-mail Targeted, USA Today, May 3, 2000, at 3A; Richard Willing, Technology Boosts Government Wiretaps (June 7, 2000), at www.usatoday.com/life/cyber/tech/cth831.htm (on file with the Fordham Law Review).
58. See Michael Goldsmith, Eavesdropping Reform: The Legality of Roving Surveillance, 1987 U. Ill. L. Rev. 401, 410 ("The success of electronic surveillance prompted experienced targets to shift telephones continuously, carefully guard conspiratorial meeting sites, and frequently change the locations of meetings.").
59. The Department of Commerce found that "[a]s of August 2000, 116.5 million Americans were online - 31.9 million more than only 20 months earlier. Internet users accounted for 44.4% of the U.S. population . . . ." Nat'l Telecomms. and Info. Admin., U.S. Dep't of Commerce, Falling Through the Net: Toward Digital Inclusion 33 (Oct. 2000), available at http://www.ntia.doc.gov/ntiahome/digitaldivide.
60. See id. at 1 ("In just 20 months, the share of households with Internet access soared by 58%, from 26.2% to 41.5%, while the share of households with computers rose from 42.1% to 51.0%. More than 80% of households with computers also have Internet access today, up from little more than 60% in 1998." (footnote omitted)).
61. See Stephen P. Smith et al., HT Research Institute, Independent Technical Review of the Carnivore System, at 4-2 (Final Report Dec. 8, 2000) ("Carnivore represents technology that protects privacy and enables lawful surveillance better than alternatives such as commercially available sniffer software.") [hereinafter Independent Review of Carnivore].
62. Carnivore was originally called "Omnivore." When the newspapers first reported about Carnivore in July 2000, several commented on the unfortunate name. The FBI recently gave Carnivore a new name: DCS1000. See Janet Kornblum, Citizens' Concerns About Privacy Grow, USA Today, Apr. 3, 2001, at 3D. This Note will refer throughout to this technology as Carnivore.
63. Independent Review of Carnivore, supra note 43, at viii. "Packeteer is a tool used to process the collected packets; the main purpose of this process is to put together all of the packets that belong to one session. . . . CoolMiner is a web browser tool that is used to analyze the packet data that Packeteer put together." Id. at 2-3.
64. Independent Review of Carnivore, supra note 43, at viii. "Packeteer is a tool used to process the collected packets; the main purpose of this process is to put together all of the packets that belong to one session. . . . CoolMiner is a web browser tool that is used to analyze the packet data that Packeteer put together." Id. at 2-3.
65. Id. at 1-1.
66. The existence of Carnivore became known to the general public when an Internet service-provider "told a House Judiciary Committee in April [2000] that the FBI was requiring the company to install the system on its network to fulfill court-ordered surveillance of criminal suspects." See Ann Harrison, Privacy Group Critical of Release of Carnivore Data, ComputerWorld, Oct. 9, 2000, at 24. Earthlink, the Internet service-provider, "resisted the installation of the secretive system because [Carnivore] caused performance problems on its network . . . [and because Earthlink] couldn't examine the technology to determine if its capturing of e-mail, IP addresses and other traffic violated the privacy of other customers." Id. This discovery aroused considerable controversy and criticism. Subsequently, Congress held hearings, and the Justice Department commissioned a study of Carnivore by the IIT Research Institute and the Illinois Institute of Technology Chicago-Kent College of Law, which published an unclassified report in December 2000. See Independent Review of Carnivore, supra note 43, at vii. The Department of Justice specifically asked the contractor to evaluate four issues. See id. The contractors, however, also integrated concerns and questions raised by privacy groups, such as "[a]ll potential capabilities of the system, independent of intended use [and c]ontrols on, and auditability of, the entire process by the FBI, the DoJ, and the courts." Id. The contractors did not address the constitutionality of Carnivore nor the trustworthiness of the agents operating it. See id. at 1-2.
67. The existence of Carnivore became known to the general public when an Internet service-provider "told a House Judiciary Committee in April [2000] that the FBI was requiring the company to install the system on its network to fulfill court- ordered surveillance of criminal suspects." See Ann Harrison, Privacy Group Critical of Release of Carnivore Data, ComputerWorld, Oct. 9, 2000, at 24. Earthlink, the Internet service-provider, "resisted the installation of the secretive system because [Carnivore] caused performance problems on its network . . . [and because Earthlink] couldn't examine the technology to determine if its capturing of e-mail, IP addresses and other traffic violated the privacy of other customers." Id. This discovery aroused considerable controversy and criticism. Subsequently, Congress held hearings, and the Justice Department commissioned a study of Carnivore by the IIT Research Institute and the Illinois Institute of Technology Chicago-Kent College of Law, which published an unclassified report in December 2000. See Independent Review of Carnivore, supra note 43, at vii. The Department of Justice specifically asked the contractor to evaluate four issues. See id. The contractors, however, also integrated concerns and questions raised by privacy groups, such as "[a]ll potential capabilities of the system, independent of intended use [and c]ontrols on, and auditability of, the entire process by the FBI, the DoJ, and the courts." Id. The contractors did not address the constitutionality of Carnivore nor the trustworthiness of the agents operating it. See id. at 1-2.
68. The existence of Carnivore became known to the general public when an Internet service-provider "told a House Judiciary Committee in April [2000] that the FBI was requiring the company to install the system on its network to fulfill court- ordered surveillance of criminal suspects." See Ann Harrison, Privacy Group Critical of Release of Carnivore Data, ComputerWorld, Oct. 9, 2000, at 24. Earthlink, the Internet service-provider, "resisted the installation of the secretive system because [Carnivore] caused performance problems on its network . . . [and because Earthlink] couldn't examine the technology to determine if its capturing of e-mail, IP addresses and other traffic violated the privacy of other customers." Id. This discovery aroused considerable controversy and criticism. Subsequently, Congress held hearings, and the Justice Department commissioned a study of Carnivore by the IIT Research Institute and the Illinois Institute of Technology Chicago-Kent College of Law, which published an unclassified report in December 2000. See Independent Review of Carnivore, supra note 43, at vii. The Department of Justice specifically asked the contractor to evaluate four issues. See id. The contractors, however, also integrated concerns and questions raised by privacy groups, such as "[a]ll potential capabilities of the system, independent of intended use [and c]ontrols on, and auditability of, the entire process by the FBI, the DoJ, and the courts." Id. The contractors did not address the constitutionality of Carnivore nor the trustworthiness of the agents operating it. See id. at 1-2.
69. On behalf of the U.S. government and in conjunction with U.S. allies, the NSA reportedly "maintain[s] a massive worldwide spying apparatus capable of capturing all forms of electronic communications." A. Michael Froomkin, The Death of Privacy?, 52 Stan. L. Rev. 1461, 1482 (2000); see also Coyle & Van Voris, supra note 6, at A4. According to a report for the European Parliament, as of 1995 NSA had "installed 'sniffer' software to collect [foreign Internet traffic of communications intelligence interest] at nine major Internet exchange points." See Duncan Campbell, Development of Surveillance Technology and Risk of Abuse of Economic Information: An Appraisal of Technology for Political Control, at ¶ 60 (1999), available at http://www.europarl.eu.int/stoa/publi/default_en.htm [hereinafter Campbell, Surveillance Technology for Political Control].
70. John Schwartz, F.B.I. Use of New Technology to Gather Evidence Challenged, N.Y. Times, July 30, 2001, at C7. After seizing, pursuant to an ordinary search warrant, the computer of an individual suspected of gambling and loan-sharking, the government was unable to gain access to the content of the computer because it had been carefully encoded. Id. The government then installed the key-logger system on the target's computer which uncovered the password on his encryption system. Id. Precise details of the technology and its use are presently not public and the government has resisted a judge's order to provide details of it. John Schwartz, U.S. Declines to Release Data in Trial, N.Y. Times, Aug. 25, 2001, at B1.
71. John Schwartz, F.B.I. Use of New Technology to Gather Evidence Challenged, N.Y. Times, July 30, 2001, at C7. After seizing, pursuant to an ordinary search warrant, the computer of an individual suspected of gambling and loan-sharking, the government was unable to gain access to the content of the computer because it had been carefully encoded. Id. The government then
72. See 1999 Wiretap Report, supra note 26, at 10.
73. Cf. id. at 6 (noting that consensual searches, including the use of body mikes, do not have to be reported).
74. For example, Senator Long in 1966 described an array of bugging devices shown to a Senate Subcommittee holding hearings on governmental surveillance activities, including small microphones and transmitters hidden inside an olive. See Long, supra note 21, at 5-6.
75. Indeed, a telephone can be turned into a "bug" through a very small modification - so that a target's conversations can be intercepted even when the target is not talking on the telephone. See Berkel & Rapaport, supra note 30, at 476-85; Long, supra note 21, at 8.
76. Cf. Wiretap Report 1999, supra note 26, at 6 (noting that situations where "the interception of a communication to which a police officer or police informant is a party" are not covered by the reporting requirements of Title III). 55. According to one authority, one significant advance in covert audio surveillance has been the development of the "electret" microphone. Berkel & Rapaport, supra note 30, at 365. Electret microphones "are much more resistant to shock and solid-borne vibration than other kinds of mikes, . . . [minimize] the problem of clothing rustle, . . . [and] perform well under temperature extremes." Id. 56. Id. at 358.
77. Id. at 435. The laser beam reflecting off the glass pane is picked up by a special receiver; thus, this technique will not be available if the receiver and laser cannot be properly aligned. Id. Furthermore, the efficacy of this surveillance technique is subject to certain environmental disturbances that cause the glass to vibrate such as air conditioners, traffic, and wind. Id.
78. Id. at 613.
79. Id. at 379.
80. Id. at 376-79, 612.
81. Strictly speaking, a pen register captures information about calls from the target telephone, while a so-called trap-and-trace device captures information about telephone calls to the target telephone. 18 U.S.C. § 3127(3)-(4) (1994). See generally U.S. Telecom Ass'n v. FCC, 227 F.3d 450, 454 (D.C. Cir. 2000) ("Pen registers record telephone numbers of outgoing calls . . . ; trap and trace devices record telephone numbers from which incoming calls originate, much like common caller-ID systems." (citing 18 U.S.C. § 3127)).
82. Cf. Diffie & Landau, supra note 20, at 192 (noting that in 1987 federal law-enforcement agencies such as the FBI and the INS requested the installation of only 91 trap-and-trace devices while in 1993, they requested over 2000).
83. See Annis, supra note 17, at 35 ("Probable cause can be developed in part through pen registers [and] traps and traces . . . . A pen register and/or trap and trace section is an important part of the affidavit that develops probable cause. Once subscriber information provides names for the numbers being called by - or calling into - the target phone, . . . it is an easy way to 'freshen' the probable cause."); see, e.g., People v. Kramer, 706 N.E.2d 731, 733 (N.Y. 1998) ("Based on the information obtained through the pen register and trap and trace devices, [the Organized Crime Task Force] advanced its efforts to an application for a more invasive eavesdropping warrant encompassing Kramer's telephone lines."); People v. Bialostok, 610 N.E.2d 374, 376 (N.Y. 1993) ("Numbers recorded by the devices over the next several days were then used to support an application for an eavesdropping warrant to monitor conversations on the two lines."); cf. Merrick D. Bernstein, Note, "Intimate Details": A Troubling New Fourth Amendment Standard for Government Surveillance Techniques, 46 Duke L. J. 575, 590 (1996) (noting how the thermal image scans were used to support search warrants in United States v. Ishmael, 48 F.3d 850, 853 (5th Cir. 1995); United States v. Myers, 46 F.3d 668, 669-70 (7th Cir. 1995); United States v. Ford, 34 F.3d 992, 997 (11th Cir. 1994); United States v. Pinson, 24 F.3d 1056, 1057 (8th Cir. 1994); United States v. Kyllo, 37 F.3d 526 (9th Cir. 1994)).
84. See infra notes 324-27 and accompanying text for a discussion of how the New York Court of Appeals eased its rules governing the use of pen registers that can easily be modified to become a wiretap and pick up the content of communications.
85. See U.S. Telecom Ass'n, 227 F.3d at 462 (noting that not all numbers dialed on a telephone are addressing information - some numbers dialed, such as an individual's calling card numbers, credit card numbers, or PIN (personal identification number), are actually content). In implementing CALEA, the FBI petitioned the FCC to require telecommunications carriers, pursuant to a pen-register authorization, to give law enforcement information about "post-cut-through dialed digits" - in other words, information in addition to the telephone number dialed. Id. at 456. While these "post-cut-through dialed digits" would provide law enforcement with information about conference-calling and call-forwarding, they would also enable pen registers to detect information that is more properly categorized as call content. Id. at 462. The D.C. Circuit found that the FCC failed to show reasoned decisionmaking, per the Chevron doctrine, in granting FBI's request for post-cut-through dialed digits. Id. at 460-63.
86. See Gene Adcock, Electro-Optical Surveillance 1-67 (CCS SecuritySource Library, Vol. 3, 1999) ("Operations Desert Shield and Desert Storm provided the US Military with its first major test of night vision capability and the public the first opportunity to see its unique capability. Media coverage of successful missions conducted during these operations introduced night vision capabilities into the living room of the world.").
87. See id. at 1-75 to 1-77; Electronic Surveillance Standards (Third): Technologically-Assisted Physical Surveillance, Standards 2-9.1(a) cmt. (1999) [hereinafter ABA Standards for Electronic Surveillance].
88. See Adcock, supra note 66, at 4-1 ("[A]n image intensified night vision device detects both minute levels of light energy and wavelengths that are outside the detection range of the human eye." (emphasis added)).
89. See id. at 5-1.
90. See id. at 8-36 to 8-37.
91. See id. at 8-37 to 8-47.
92. See id. at 6-3, 6-13 to 6-15.
93. See Kyllo v. United States, 121 S. Ct. 2038, 2041 (2001); Adcock, supra note 66, at 6-3, 6-13 to 6-15.
94. See Kyllo, 121 S. Ct. at 2041; Adcock, supra note 66, at 6-17.
95. The Fifth, Seventh, Eighth, and Eleventh Circuits had all previously held that the use of thermal imaging to detect heat emanating from houses was not a search under the Fourth Amendment. See United States v. Robinson, 62 F.3d 1325 (11th Cir. 1995); United States v. Myers, 46 F.3d 668 (7th Cir. 1995); United States v. Ishmael, 48 F.3d 850 (5th Cir. 1995); United States v. Pinson, 24 F.3d 1056 (8th Cir. 1994). Although panels of the Ninth and Tenth Circuits had ruled that such use of thermal imaging did constitute a search under the Fourth Amendment, see United States v. Kyllo, 140 F.3d 1249 (9th Cir. 1998); United States v. Cusumano, 67 F.3d 1497, 1510 (10th Cir. 1995), both of these decisions were later withdrawn. See United States v. Kyllo, 184 F.3d 1059 (9th Cir. 1999); United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996). The Ninth Circuit subsequently aligned with the four circuits that held this was not a search. See United States v. Kyllo, 190 F.3d 1041, 1043 (1999). However, a federal district court and a California appellate court ruled that warrantless thermal imaging violated the Fourth Amendment. See United States v. Field, 855 F. Supp. 1518 (W.D. Wis. 1994); People v. Deutsch, 44 Cal. App. 4th 1224 (Cal. Ct. App. 1996), appeal denied 1996 Cal. LEXIS 4001 (July 24, 1996). See generally Kyllo, 190 F.3d at 1048 (Noonan, J., dissenting). In addition, the highest courts of the states of Washington and Montana had ruled that thermal imaging violates their respective state constitutions. See State v. Siegal, 934 P.2d 176 (Mont. 1997); State v. Young, 867 P.2d 593 (Wash. 1994).
96. See, e.g., Kyllo, 190 F.3d at 1044-45, rev'd, 121 S. Ct. 2038 (2001).
97. See Kyllo, 121 S. Ct. at 2044 n.3 ("The ability to 'see' through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development."); see also Steven Salvador Flores, Note, Gun Detector Technology and the Special Needs Exception, 25 Rutgers Computer & Tech. L.J. 135, 139-40 (1999); Peter Eggleston, Video Meets Vision: A System That "Sees" Through Walls!, Advanced Imaging, Mar. 1, 2000, at 10.
98. See Kyllo, 121 S. Ct. at 2044 n.3 ("The ability to 'see' through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development."); see also Steven Salvador Flores, Note, Gun Detector Technology and the Special Needs Exception, 25 Rutgers Computer & Tech. L.J. 135, 139-40 (1999); Peter Eggleston, Video Meets Vision: A System That "Sees" Through Walls!, Advanced Imaging, Mar. 1, 2000, at 10.
99. See Adcock, supra note 66, at 7-9 ("[T]he US military is starting to surplus many of these older systems, transferring them to US law enforcement agencies for use in the war against drugs." (emphasis omitted)); see, e.g., Kyllo, 121 S. Ct. at 2041 (describing the process of using of a thermal imager to detect heat emissions from a house).
100. One commentator described a thermal-imaging product as follows: Millivision is intended to be used primarily by law enforcement officers, usually to conduct "remote frisks" of individuals to detect the presence of concealed weapons. A patrolman could operate the device from his car to examine an individual on the street from a substantial distance without having to leave the vehicle or physically "search" the individual - and without the individual's knowledge. Bernstein, supra note 63, at 600-01 (footnotes omitted).
101. As of 1994, one thermal imager known as Millivision offered "the opportunity for rapid and remote detection of metallic and non-metallic weapons, plastic explosives, drugs, and other contraband concealed under multiple layers of clothing without the necessity of a direct physical search." Reducing Gun Violence: Before the Subcomm. on Crime and Criminal Justice of the House Judiciary Comm., 103rd Cong. (1994) (statement of Dr. G. Richard Huguenin of Millitech Corp.), available at 1994 WL 14190555 [hereinafter Huguenin Statement]. They were able to detect non-metallic items as small as a centimeter as of 1994. Id. The thermal imager detects these contraband items by detecting variations, even slight ones, between the heat radiated by different objects relative to other objects, such as the human body. See id.; see also Flores, supra note 77, at 138-39.
102. See Adcock, supra note 66, at 8-1 to 8-59 (discussing the various civilian applications of image intensification and thermal imaging); see also Kyllo, 190 F.3d at 1044 n.4 (noting other uses besides surveillance of thermal imagers), rev'd, 121 S. Ct. 2038 (2001).
103. See Huguenin Statement, supra note 80; Flores, supra note 77, at 138-39.
104. See T. Wade McKnight, Note, Passive Sensory-Enhanced Searches: Shifting the Fourth Amendment "Reasonableness" Burden, 59 La. L. Rev. 1243, 1265 (1999) ("[A] new device known as a radar skin scanner is capable of producing images so precise that the operator is able to tell whether or not a male subject has been circumcised." (citing a 1997 report in the American Bar Association Journal)). However, law enforcement can configure the devices to afford some measure of protection for the privacy of people scanned by the device; for example, it can be programmed to only show on the screen items that satisfy certain criteria. See Flores, supra note 77, at 139. Millivision's manufacturer argues that privacy safeguards, such as an image understanding algorithm ('IUA'), will protect subjects from unnecessary invasions. The IUA is a computer-filtering system designed to send only those shapes that are programmed as suspicious to the human operator for further inspection. The shapes of many known weapons could be programmed into the IUA. Only if a scanned image matches the shape of a weapon, will the body's image be sent to the operator. Id. (footnotes omitted).
105. See T. Wade McKnight, Note, Passive Sensory-Enhanced Searches: Shifting the Fourth Amendment "Reasonableness" Burden, 59 La. L. Rev. 1243, 1265 (1999) ("[A] new device known as a radar skin scanner is capable of producing images so precise that the operator is able to tell whether or not a male subject has been circumcised." (citing a 1997 report in the American Bar Association Journal)). However, law enforcement can configure the devices to afford some measure of protection for the privacy of people scanned by the device; for example, it can be programmed to only show on the screen items that satisfy certain criteria. See Flores, supra note 77, at 139. Millivision's manufacturer argues that privacy safeguards, such as an image understanding algorithm ('IUA'), will protect subjects from unnecessary invasions. The IUA is a computer-filtering system designed to send only those shapes that are programmed as suspicious to the human operator for further inspection. The shapes of many known weapons could be programmed into the IUA. Only if a scanned image matches the shape of a weapon, will the body's image be sent to the operator. Id. (footnotes omitted).
106. See T. Wade McKnight, Note, Passive Sensory-Enhanced Searches: Shifting the Fourth Amendment "Reasonableness" Burden, 59 La. L. Rev. 1243, 1265 (1999) ("[A] new device known as a radar skin scanner is capable of producing images so precise that the operator is able to tell whether or not a male subject has been circumcised." (citing a 1997 report in the American Bar Association Journal)). However, law enforcement can configure the devices to afford some measure of protection for the privacy of people scanned by the device; for example, it can be programmed to only show on the screen items that satisfy certain criteria. See Flores, supra note 77, at 139. Millivision's manufacturer argues that privacy safeguards, such as an image understanding algorithm ('IUA'), will protect subjects from unnecessary invasions. The IUA is a computer-filtering system designed to send only those shapes that are programmed as suspicious to the human operator for further inspection. The shapes of many known weapons could be programmed into the IUA. Only if a scanned image matches the shape of a weapon, will the body's image be sent to the operator. Id. (footnotes omitted).
107. See 1 Carr, supra note 25, § 3.2(e)(2)(D), at 3-47 to 3-48 ("As an aid to physical surveillance, particularly of objects or suspects in moving vehicles, law enforcement officers often use small transmitting devices, statutorily defined as 'mobile tracking devices' and usually referred to as beepers." (footnote omitted)). A "tracking device" is statutorily defined as "an electronic or mechanical device which permits the tracking of the movement of a person or object." 18 U.S.C. § 3117(b) (1994).
108. See 2 Fishman & McKenna, supra note 24, § 28:2, at 28-5 to 28-6.
109. See Simon Romero, Location Devices' Use Rises, Prompting Privacy Concerns, N.Y. Times, Mar. 4, 2001, at 1.
110. See id.
111. See id. ("[T]he Federal Communications Commission has determined that by the end of this year carriers will need to begin equipping either cell phones or their communications networks with technology that would allow authorities to determine the location of most callers to within 300 feet, compared with current systems that can locate them within about 600 feet.").
112. See id. (discussing "a chip called Digital Angel that could be implanted beneath human skin, enabling his company to track the location of a person almost anywhere using a combination of satellites and radio technology").
113. See Froomkin, supra note 48, at 1494.
114. See id.
115. The Innocence Project is an organization with chapters throughout the country that uses DNA science to challenge convictions of innocent people. See generally Barry Scheck & Peter Neufeld, Actual Innocence (2000) (analyzing cases where DNA evidence proved numerous wrongful convictions); Robert W. Schumacher II, Expanding New York's DNA Database: The Future of Law Enforcement, 26 Fordham Urb. L.J. 1635, 1636-49 (1999) (discussing the science and the technology of DNA).
116. A pamphlet distributed by the National Commission for the Future of DNA Evidence stated: "Recent advancements in DNA technology are enabling law enforcement officers to solve cases previously thought to be unsolvable." Nat'l Comm'n on Future of DNA Evidence, U.S. Dep't of Justice, What Every Law Enforcement Officer Should Know About DNA Evidence (on file with the Fordham Law Review). The pamphlet further explains: The saliva on the stamp of a stalker's threatening letter or the skin cells shed on a ligature of a strangled victim can be compared with a suspect's blood or saliva sample. Similarly, DNA collected from the perspiration on a baseball cap discarded by a rapist at one crime scene can be compared with DNA in the saliva swabbed from the bite mark on a different rape victim. Id.; cf. Richard Willing, Criminals Try to Outwit DNA, USA Today, Aug. 28, 2000, at 1A (describing criminals' tactics for undermining effectiveness of genetic evidence). The article recounts how one prisoner smuggled a sample of his semen out of the prison and paid a woman to stage a fake rape to create the impression that he was accused of a crime actually committed by another person with exactly the same DNA - a "3 trillion to 1" chance. Id. The article later notes that advances in DNA-testing technology "make it difficult to ruin a crime scene by spreading strangers' DNA. Enough DNA to form a near-certain match is now routinely lifted from fingernail clippings, hair particles, tiny sweat stains and even dried saliva from old postage stamps." Id. A lawyer quoted in the article noted that "police can 'trap' [suspects] by lifting DNA from cigarette butts, beverage containers and even spittle left on interrogation room floors, even if the cops don't have enough evidence to get a search warrant." Id.
117. Cf. Charlotte Twight, Watching You: Systematic Federal Surveillance of Ordinary Americans (Cato Inst. Briefing Papers No. 69, Oct. 2001). Professor Twight states: [T]he federal government has instituted a variety of data collection programs that compel the production, retention, and dissemination of personal information about every American citizen. Linked through an individual's Social Security number, these labor, medical, education and financial databases now empower the federal government to obtain a detailed portrait of any person: the checks he writes, the types of causes he supports, and what he says 'privately' to his doctor. Id. at 1.
118. See 1 The Department of Justice Manual, General Resource Manual No. 11, at 1-101 (2d ed. 2000); Office of Technology Assessment, U.S. Congress, A Preliminary Assessment of the National Crime Information Center and the Computerized Criminal History System (1978) [hereinafter OTA, NCIC Report].
119. See 1 The Department of Justice Manual, General Resource Manual No. 11, at 1-101 (2d ed. 2000); Office of Technology Assessment, U.S. Congress, A Preliminary Assessment of the National Crime Information Center and the Computerized Criminal History System (1978) [hereinafter OTA, NCIC Report].
120. See Steven A. Bercu, Toward Universal Surveillance in an Information Age Economy: Can We Handle Treasury's New Police Technology?, 34 Jurimetrics J. 383, 388-89 (1994).
121. 1 The Department of Justice Manual, supra note 95, at 1-101.
122. FBI, U.S. Dep't of Justice, Press Release, July 15, 1999, available at http://www.fbi.gov/pressrel/pressrel99/ncic2000.htm (describing the new services provided by the enhancement) (on file with the Fordham Law Review).
123. See Bereu, supra note 96, at 389.
124. See id. at 394-95.
125. See id. at 396-97.
126. Id. at 394.
127. See id. at 390-91.
128. See Schumacher, supra note 92, at 1644 ("A DNA database is a computerized collection of DNA profiles capable of being used for criminal identification purposes. . . . Essentially, a DNA test result derived from a crime scene sample can be checked against the digital profiles stored in the database.").
129. Gregg Easterbrook, DNA and the End of Innocence: The Myth of Fingerprints, The New Republic, July 31, 2000, at 20.
130. See id. The author claims: In the fairly near future, a standard item in the trunks of American police cruisers - perhaps even on each officer's belt-may be a DNA analyzer. As a suspect is arrested, police will quickly swipe the inside of his cheek with a cotton swab and pop the results into the scanner. Within minutes the machine will produce a stream of data describing the suspect's unique genetic structure. The data will be uploaded to state or national DNA databases to determine whether the suspect's DNA matches that of blood, sweat, semen, or similar bodily fluids found at the scene of unsolved crimes around the nation. Id.; see also Nat'l Inst. of Justice, U.S. Dep't of Justice, The Future of Forensic DNA Testing: Predictions of the Research and Development Working Group 3 (2000) ("Portable, hand-held systems are now working in laboratory experiments; how soon these will be available for routine use is not clear.").
131. See infra Part II.A.1.
132. See 18 U.S.C. §§ 2520, 2707, 2712 (1994); see also Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, sec. 223, 115 Stat. 272 (2001) (amending 18 U.S.C. §§ 2520, 2707, 2712).
133. One commentator explained that "the principal telecommunications regulatory body in the United States is the FBI. The FBI is taking on a major regulatory and policymaking role in determining the direction of technology." Stewart Baker, Regulating Technology for Law Enforcement, 4 Tex. Rev. L. & Pol. 53, 55-56 (1999). As Representative Bob Barr explained: This significant expansion of federal wiretap authority, sought for years by the FBI and other federal law enforcement agencies, was accomplished not through hearings, legislative mark-up, floor vote, and public input. Rather, it was itself born of a covert operation with nary a hearing. The provision appeared as a surreptitious and non-germane addition to legislation authorizing foreign intelligence activities. Bob Barr, A Tyrant's Toolbox: Technology and Privacy in America, 26 J. Legis. 71, 75 (2000) (noting the expansion of the capability to conduct "roving wiretaps" authorized in Intelligence Authorization Act for 1999 § 604, Pub. L. No. 105-272, 112 Stat. 2397, 2413 (codified at 18 U.S.C. § 2518(11)(b))). According to a 1999 report published by the European Parliament, [b]etween 1993 to 1998, the United States conducted sustained diplomatic activity seeking to persuade EU nations and the [Organization for Economic Cooperation and Development] to adopt their "key recovery" system. Throughout this period, the US government insisted that the purpose of the initiative was to assist law enforcement agencies. Documents obtained for this study suggest that these claims willfully misrepresented the true intention of US policy. Documents obtained under the US Freedom of Information Act indicate that policymaking was led exclusively by NSA officials, sometimes to the complete exclusion of police or judicial officials. . . . Since 1993, unknown to European parliamentary bodies and their electors, law enforcement officials from many EU countries and most of the UKUSA nations have been meeting annually in a separate forum to discuss their requirements for intercepting communications. These officials met under the auspices of a hitherto unknown organisation, ILETS (International Law Enforcement Telecommunications Seminar). ILETS was initiated and founded by the FBI. Campbell, Surveillance Technology for Political Control, supra note 48, at ¶¶ 84, 85.
134. One commentator explained that "the principal telecommunications regulatory body in the United States is the FBI. The FBI is taking on a major regulatory and policymaking role in determining the direction of technology." Stewart Baker, Regulating Technology for Law Enforcement, 4 Tex. Rev. L. & Pol. 53, 55-56 (1999). As Representative Bob Barr explained: This significant expansion of federal wiretap authority, sought for years by the FBI and other federal law enforcement agencies, was accomplished not through hearings, legislative mark-up, floor vote, and public input. Rather, it was itself born of a covert operation with nary a hearing. The provision appeared as a surreptitious and non-germane addition to legislation authorizing foreign intelligence activities. Bob Barr, A Tyrant's Toolbox: Technology and Privacy in America, 26 J. Legis. 71, 75 (2000) (noting the expansion of the capability to conduct "roving wiretaps" authorized in Intelligence Authorization Act for 1999 § 604, Pub. L. No. 105-272, 112 Stat. 2397, 2413 (codified at 18 U.S.C. § 2518(11)(b))). According to a 1999 report published by the European Parliament, [b]etween 1993 to 1998, the United States conducted sustained diplomatic activity seeking to persuade EU nations and the [Organization for Economic Cooperation and Development] to adopt their "key recovery" system. Throughout this period, the US government insisted that the purpose of the initiative was to assist law enforcement agencies. Documents obtained for this study suggest that these claims willfully misrepresented the true intention of US policy. Documents obtained under the US Freedom of Information Act indicate that policymaking was led exclusively by NSA officials, sometimes to the complete exclusion of police or judicial officials. . . . Since 1993, unknown to European parliamentary bodies and their electors, law enforcement officials from many EU countries and most of the UKUSA nations have been meeting annually in a separate forum to discuss their requirements for intercepting communications. These officials met under the auspices of a hitherto unknown organisation, ILETS (International Law Enforcement Telecommunications Seminar). ILETS was initiated and founded by the FBI. Campbell, Surveillance Technology for Political Control, supra note 48, at ¶¶ 84, 85.
135. In recent years, the FBI has lent particular influence to two other important initiatives: the Communications Assistance for Law Enforcement Act and the so-called "Clipper chip," an encryption technology for which law enforcement had a key, ensuring that law enforcement would be able to decode any communication. See Diffie & Landau, supra note 20, at vii. When the FBI submitted its "Clipper chip" technology for notice-and-comment rulemaking, the public input was overwhelmingly against it-with two favorable responses and 300 negative ones. See id. Nevertheless, the FBI continued to aggressively pursue and promote its technology. See Bruce Schneier & David Banisar, The Electronic Privacy Papers: Documents in the Battle for Privacy in the Age of Surveillance 320 (1997); see also Diffie & Landau, supra note 20, at 76. After lobbying for passage of CALEA, the FBI has continued to play a major role in its implementation. Pursuant to CALEA, the FBI and the Telecommunications Industry Association ("TIA"), the body that was setting the standards for the industry, conducted "extensive negotiations" before the TIA arrived at these standards, known as the J-Standard. See U.S. Telecom Ass'n v. FCC, 227 F.3d 450, 455 (D.C. Cir. 2000). The FBI then requested that the Federal Communications Commission grant law enforcement nine additional capabilities beyond those included in the J-Standard. See id. at 456. The FCC granted four of nine proposed additional capabilities requested by the FBI, denied three, and granted two in part. Id.
136. One indication of how many components of the federal government are involved in law enforcement in some respect is that the newly created Office of Homeland Security will coordinate forty-six agencies and departments. See Elizabeth Becker & Tim Weiner, New Office to Become a White House Agency, N.Y. Times, Sept. 28, 2001, at B5.
137. See Office of Technology Assessment, U.S. Congress, Electronic Surveillance and Civil Liberties 14 (1985) [hereinafter OTA, Civil Liberties].
138. See Adcock, supra note 66, passim; see also Froomkin, supra note 48, at 1500-01 (discussing development by military of "smart dust," which is "ubiquitous miniature sensors floating around in the air").
139. See, e.g., supra notes 66-67, 81 and accompanying text.
140. Although the Constitution as a general rule does not reach the conduct of private persons, see 1 David S. Rudstein et al., Criminal Constitutional Law ¶ 2.02, at 2-7 (2000), the role of these private-sector actors may take on a constitutional dimension through the state-actors doctrine, which states that when "a private party 'act[s] as an instrument or agent of the state' in effecting a search or seizure, he is subject to the restraints of the Fourth Amendment." Id. ¶ 2.02[3], at 2-14.
141. See, e.g., Kyllo v. United States, 121 S. Ct. 2038, 2041 (2001) (noting that records of energy consumption were used to build the case against Kyllo); cf. Twight, supra note 94 (describing the substantial information collected by the government related to individuals' employment, finances, health, and education).
142. See infra notes 245, 247, and 270 and accompanying text for the discussion of the Communications Assistance for Law Enforcement Act of 1994.
143. See United States v. White, 401 U.S. 745, 753 (1971) (holding in a plurality decision that a conversation transmitted from a wired informant to federal agents did not violate the Fourth Amendment and did not require a warrant). See generally 1 Carr, supra note 25, § 3.5, at 3-86 to 3-151.
144. See 1 Carr, supra note 25, § 3.5, at 3-88 ("Without question, consent surveillance is the most widely used and most frequently practiced mode of eavesdropping . . . .").
145. The technologies of physical surveillance - as contrasted to "communications surveillance" and "transactional surveillance" - for which these standards were specifically developed are "video surveillance; tracking devices; illumination devices; telescopic devices; and detection devices." ABA Standards for Electronic Surveillance, supra note 67, at 2-3 (quotation marks in original omitted).
146. Id. Standard 2-9.1, at 21. The face-scanning technology used in Tampa illustrates technologies for detecting and preventing crime, while the thermal imager in the Kyllo case illustrates a technology for detecting, investigating, and prosecution; more advanced thermal imagers capable of seeing through walls and clothes illustrate a technology for detection and investigation of crime and for safety of officers; the X-ray machines in airports illustrate technologies for deterrence and the protection of the innocent.
147. See Froomkin, supra note 48, at 1476-77. For a description of the widespread use of closed-circuit televisions in the United Kingdom, see Jeffrey Rosen, A Watchful State, N.Y. Times, Oct. 7, 2001, § 6 (Magazine), at 38. Professor Rosen describes how the rapid proliferation of cameras - to perhaps 2.5 million cameras throughout the country in approximately 440 city centers - has been propelled by the fear of terrorism. See id. at 41. Although the cameras are not primarily being used to detect terrorists (because "few terrorists are suspected in advance of their crimes," see id. at 42) and are not clearly leading to reduced crime rates ("[l]ast year, Britain's violent crime rates actually increased by 4.3 percent," see id. at 92), these cameras are nevertheless very popular. See id. at 41-42. Professor Rosen argues that the United States should "resist going down the same path," because these systems have "subtle but far-reaching social costs" (such as intensified racial profiling and video voyeurism of women), while their benefits remain unproven. See id. at 92, 93.
148. See Froomkin, supra note 48, at 1476-77. For a description of the widespread use of closed-circuit televisions in the United Kingdom, see Jeffrey Rosen, A Watchful State, N.Y. Times, Oct. 7, 2001, § 6 (Magazine), at 38. Professor Rosen describes how the rapid proliferation of cameras - to perhaps 2.5 million cameras throughout the country in approximately 440 city centers - has been propelled by the fear of terrorism. See id. at 41. Although the cameras are not primarily being used to detect terrorists (because "few terrorists are suspected in advance of their crimes," see id. at 42) and are not clearly leading to reduced crime rates ("[l]ast year, Britain's violent crime rates actually increased by 4.3 percent," see id. at 92), these cameras are nevertheless very popular. See id. at 41-42. Professor Rosen argues that the United States should "resist going down the same path," because these systems have "subtle but far-reaching social costs" (such as intensified racial profiling and video voyeurism of women), while their benefits remain unproven. See id. at 92, 93.
149. See Froomkin, supra note 48, at 1476-77. For a description of the widespread use of closed-circuit televisions in the United Kingdom, see Jeffrey Rosen, A Watchful State, N.Y. Times, Oct. 7, 2001, § 6 (Magazine), at 38. Professor Rosen describes how the rapid proliferation of cameras - to perhaps 2.5 million cameras throughout the country in approximately 440 city centers - has been propelled by the fear of terrorism. See id. at 41. Although the cameras are not primarily being used to detect terrorists (because "few terrorists are suspected in advance of their crimes," see id. at 42) and are not clearly leading to reduced crime rates ("[l]ast year, Britain's violent crime rates actually increased by 4.3 percent," see id. at 92), these cameras are nevertheless very popular. See id. at 41-42. Professor Rosen argues that the United States should "resist going down the same path," because these systems have "subtle but far-reaching social costs" (such as intensified racial profiling and video voyeurism of women), while their benefits remain unproven. See id. at 92, 93.
150. See Froomkin, supra note 48, at 1476-77. For a description of the widespread use of closed-circuit televisions in the United Kingdom, see Jeffrey Rosen, A Watchful State, N.Y. Times, Oct. 7, 2001, § 6 (Magazine), at 38. Professor Rosen describes how the rapid proliferation of cameras - to perhaps 2.5 million cameras throughout the country in approximately 440 city centers - has been propelled by the fear of terrorism. See id. at 41. Although the cameras are not primarily being used to detect terrorists (because "few terrorists are suspected in advance of their crimes," see id. at 42) and are not clearly leading to reduced crime rates ("[l]ast year, Britain's violent crime rates actually increased by 4.3 percent," see id. at 92), these cameras are nevertheless very popular. See id. at 41-42. Professor Rosen argues that the United States should "resist going down the same path," because these systems have "subtle but far-reaching social costs" (such as intensified racial profiling and video voyeurism of women), while their benefits remain unproven. See id. at 92, 93.
151. See Froomkin, supra note 48, at 1476-77. For a description of the widespread use of closed-circuit televisions in the United Kingdom, see Jeffrey Rosen, A Watchful State, N.Y. Times, Oct. 7, 2001, § 6 (Magazine), at 38. Professor Rosen describes how the rapid proliferation of cameras - to perhaps 2.5 million cameras throughout the country in approximately 440 city centers - has been propelled by the fear of terrorism. See id. at 41. Although the cameras are not primarily being used to detect terrorists (because "few terrorists are suspected in advance of their crimes," see id. at 42) and are not clearly leading to reduced crime rates ("[l]ast year, Britain's violent crime rates actually increased by 4.3 percent," see id. at 92), these cameras are nevertheless very popular. See id. at 41-42. Professor Rosen argues that the United States should "resist going down the same path," because these systems have "subtle but far-reaching social costs" (such as intensified racial profiling and video voyeurism of women), while their benefits remain unproven. See id. at 92, 93.
152. See Froomkin, supra note 48, at 1476-77. For a description of the widespread use of closed-circuit televisions in the United Kingdom, see Jeffrey Rosen, A Watchful State, N.Y. Times, Oct. 7, 2001, § 6 (Magazine), at 38. Professor Rosen describes how the rapid proliferation of cameras - to perhaps 2.5 million cameras throughout the country in approximately 440 city centers - has been propelled by the fear of terrorism. See id. at 41. Although the cameras are not primarily being used to detect terrorists (because "few terrorists are suspected in advance of their crimes," see id. at 42) and are not clearly leading to reduced crime rates ("[l]ast year, Britain's violent crime rates actually increased by 4.3 percent," see id. at 92), these cameras are nevertheless very popular. See id. at 41-42. Professor Rosen argues that the United States should "resist going down the same path," because these systems have "subtle but far-reaching social costs" (such as intensified racial profiling and video voyeurism of women), while their benefits remain unproven. See id. at 92, 93.
153. See Froomkin, supra note 48, at 1476-77. For a description of the widespread use of closed-circuit televisions in the United Kingdom, see Jeffrey Rosen, A Watchful State, N.Y. Times, Oct. 7, 2001, § 6 (Magazine), at 38. Professor Rosen describes how the rapid proliferation of cameras - to perhaps 2.5 million cameras throughout the country in approximately 440 city centers - has been propelled by the fear of terrorism. See id. at 41. Although the cameras are not primarily being used to detect terrorists (because "few terrorists are suspected in advance of their crimes," see id. at 42) and are not clearly leading to reduced crime rates ("[l]ast year, Britain's violent crime rates actually increased by 4.3 percent," see id. at 92), these cameras are nevertheless very popular. See id. at 41-42. Professor Rosen argues that the United States should "resist going down the same path," because these systems have "subtle but far-reaching social costs" (such as intensified racial profiling and video voyeurism of women), while their benefits remain unproven. See id. at 92, 93.
154. See Dana Canedy, Tampa Scans the Faces in Its Crowds for Criminals, N.Y. Times, July 4, 2001, at A1.
155. See Barstow, supra note 6 (discussing measures that professionals recommended for deterring terrorist attacks against Times Square, Grand Central Terminal, the Statue of Liberty, and St. Patrick's Cathedral). According to this article, the former police commissioner of New York City, Howard Safir, recommended "the installation of 100 or so surveillance cameras in Times Square[, which would] . . . be integrated with biometric facial imaging software, allowing the images of all pedestrians to be compared with photographs of known terrorists." Id. Another professional recommended that visitors or commuters traveling through Grand Central Station be channeled through passive metal detectors. Id.
156. See, e.g., supra note 81.
157. In Whalen v. Roe, 429 U.S. 589 (1977), the Court observed: The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. Id. at 605. However, the Court's next comment - "The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures," id. - does not entirely square with a contemporaneous congressional report which found "a disturbing absence of laws to control the new information capabilities of government, [and] an equally disturbing absence of knowledge of what data banks the government had, what they contained, and what they were used for." 1 Federal Data Banks and Constitutional Rights, supra note 23, at III.
158. See 1 Federal Data Banks and Constitutional Rights, supra note 23, at XVI ("As the planning, programming, and budgeting functions of federal agencies became more complex, the use of and demand for statistical data in machine-readable form also grew."); Barr, supra note 109, at 79 ("Domestic policy goals such as preventing the employment of illegal aliens, tracking the spread of diseases, and enforcing the payment of child support, have led to a government push for larger, more closely linked databases.").
159. ABA Standards for Electronic Surveillance, supra note 67, Standard 2-9.1(c) cmt., at 26-27.
160. Id. at 26.
161. See 1 Carr, supra note 25, § 1.2(b), at 1-6 to 1-7 (describing the common use of surveillance to gain information about criminal activities beyond use in prosecutions - to "determine the scope of a criminal organization, the extent and nature of its activities, and the identities of its participants"); cf. Diffie & Landau, supra note 20, at 114 ("In general, wiretaps appear to be of greater value in gathering intelligence than in developing evidence.").
162. See Louis A. Chiarella & Michael A. Newton, "So Judge, How Do I Get That FISA Warrant? ": The Policy and Procedure for Conducting Electronic Surveillance, Army Law., Oct. 1997, at 25, 27-29 (discussing distinctions between surveillance for counterintelligence, for law enforcement, and for domestic security); cf. Physical Searches for Foreign Intelligence Purposes: Hearing Before the Subcomm. on Legis. of the House Permanent Select Comm. On Intelligence, 101st Cong. 1 (1990) (comments of Chairman McHugh) ("[Warrantless physical searches conducted in the United States for foreign intelligence purposes . . . occur with some regularity and have for several years.") [hereinafter Physical Searches for Foreign Intelligence]; id. at 5 (statement of Mary Lawton, Department of Justice) ("It is important to understand that the current provision for issuing judicial search warrants, Rule 41 of the Federal Rules of Criminal Procedure, is ill-suited to the field of intelligence gathering.").
163. See Louis A. Chiarella & Michael A. Newton, "So Judge, How Do I Get That FISA Warrant? ": The Policy and Procedure for Conducting Electronic Surveillance, Army Law., Oct. 1997, at 25, 27-29 (discussing distinctions between surveillance for counterintelligence, for law enforcement, and for domestic security); cf. Physical Searches for Foreign Intelligence Purposes: Hearing Before the Subcomm. on Legis. of the House Permanent Select Comm. On Intelligence, 101st Cong. 1 (1990) (comments of Chairman McHugh) ("[Warrantless physical searches conducted in the United States for foreign intelligence purposes . . . occur with some regularity and have for several years.") [hereinafter Physical Searches for Foreign Intelligence]; id. at 5 (statement of Mary Lawton, Department of Justice) ("It is important to understand that the current provision for issuing judicial search warrants, Rule 41 of the Federal Rules of Criminal Procedure, is ill-suited to the field of intelligence gathering.").
164. Cf. 1 Carr, supra note 25, § 1.2, at 1-7 (describing surveillance for the gathering of specific evidence as being at the "other extreme from open-ended and unrestricted strategic intelligence surveillance"); Chiarella & Newton, supra note 131, at 27 ("The subject of a law enforcement investigation eventually learns of or knows about any searches and surveillance, even if the collection of the evidence does not result in prosecution.").
165. Cf. supra notes 44-48 and accompanying text (discussing Carnivore and Echelon).
166. See Chiarella & Newton, supra note 131, at 27 ("The 'subject' of counterintelligence collection techniques will not learn of searches and surveillance conducted, except in those exceptional instances where the Attorney General later approves the use of the collected information as criminal evidence.").
167. See Diffie & Landau, supra note 20, at 137-48 (discussing incidents of illegal surveillance of prominent political figures from the 1940s through the 1980s); Richard E. Morgan, Domestic Intelligence: Monitoring Dissent in America 3-10, 61-62 (1980) (discussing incidents of questionable or illegal activities, including surveillance, by the FBI, CIA, and U.S. military from World War II to Watergate); Report of the National Wiretapping Commission, supra note 23, at 163-64 (discussing illegal surveillance by the New York City Special Investigations Unit and by the Houston Police Department). In the early 1970s, several instances of illegal surveillance by federal agencies came to light. For instance, it was learned that under the direction of President Nixon, a group of federal agents called the "Plumbers" broke into the psychiatrist's office of Daniel Ellsberg, who was responsible for leaking the documents relating to the U.S. government's handling of the war in Vietnam, the so-called Pentagon Papers, to the New York Times and Washington Post. See Morgan, supra, at 5. William Ruckelshaus, appointed in 1973 by President Nixon to head the foundering FBI, "revealed that between mid-1969 and early 1970 the FBI had, at the direction of White House officials, installed without warrants seventeen wiretaps on government officials and newsmen in an effort to determine the source of leaks of foreign policy information." Id. at 6. As evidence of potential or actual improprieties grew, special committees within the U.S. Senate (chaired by Frank Church) and the U.S. House (chaired by Otis Pike) were created to further investigate the extent of improper activities by federal agencies. See id. at 7-8. The Church Committee (the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities) eventually uncovered evidence that: For the next thirty years [after World War II], the FBI engaged in extensive monitoring of radical politics, largely in response to three separate waves of domestic unrest: the perceived danger of domestic communism in the 1940s and early 1950s, the civil rights movement of the mid-1960s, and the anti-Vietnam war movement of the late 1960s and early 1970s. Id. at 37. Other federal agencies, such as the CIA, NSA, IRS, Army, and Secret Service, were also employing a variety of "questionable and sometimes illegal practices" to monitor and manipulate "political dissent in this country." Id. at 3; see also id. at 37-83. With regard to the activities of the U.S. Army, Morgan states: The army began the Continental United States (CONUS) Intelligence Program in the summer of 1965 to provide early warning of civil disturbances that it might be called on to quiet. Two years later, the program was expanded to include collecting materials concerning the political beliefs and actions of groups and individuals active in the civil rights movement, the white supremacy movement, the black power movement, and the movement against the war in Vietnam. . . . . . . . The Church Committee Report in 1976 identified four general areas of army involvement in illegal or at least problematic domestic intelligence activity: the collection of information concerning the political activities of individuals and groups; the monitoring of domestic radio transmissions despite a Federal Communications Commission opinion that such monitoring was illegal; investigations of groups that the military considered threats to their own personnel and installations; and assistance rendered to other agencies - ranging from the Justice Department to local police forces - engaged in keeping track of militant dissent. Id. at 61-62.
168. See infra note 308 and accompanying text.
169. Bernstein, supra note 63, at 579.
170. See ABA Standards for Electronic Surveillance, supra note 67, Standard 2-9.1(b) cmt, at 24 ("[T]echnologically-assisted physical surveillance can implicate other values as well, including 'freedom of association, speech, and travel,' and, more generally, the 'openness of society.'"); Froomkin, supra note 48, at 1506 (noting that "the First Amendment right to freedom of association imposes some limits on the extent to which the government may observe and profile citizens, if only by creating a right to anonymity in some cases").
171. See OTA, Civil Liberties, supra note 112, at 9; cf. Telford Taylor, Two Studies in Constitutional Interpretation 64-67 (1969) (discussing the implication on the Fifth Amendment right against self-incrimination of the seizure and use of personal papers); Froomkin, supra note 48, at 1506-23 (analyzing the First Amendment aspects of electronic surveillance). In Olmstead v. United States, the Court held that a wiretap did not violate the defendant's right against self-incrimination. 277 U.S. 438, 462 (1928). This was the same decision where the Supreme Court ruled that a non-trespass wiretap did not violate the Fourth Amendment. Id. at 466. Despite significant advances in the means for intercepting and recording a suspect's words and actions, the Olmstead ruling with respect to the implications of electronic surveillance for the Fifth Amendment remains valid. See 1 Carr, supra note 25, § 1.3(a), at 1-8 to 1-9; Taylor, supra, at 72-73. However, a full exploration of this interplay is beyond the scope of this Note.
172. See ABA Standards for Electronic Surveillance, supra note 67, at 6 ("The constitutional provision most relevant to regulation of physical surveillance is, of course, the Fourth Amendment. . . .").
173. U.S. Const. amend. IV.
174. See Taylor, supra note 139, at 23, 42-43; Kevin J. Allen, Overview of the Fourth Amendment, 88 Geo. L.J. 883, 883 (2000); Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 762 (1994); Jennifer Y. Buffaloe, Note, "Special Needs" and the Fourth Amendment: An Exception Poised to Swallow the Warrant Preference Rule, 32 Harv. C.R.-C.L. L. Rev. 529, 529 (1997) ("A small forest has been pulped by legal scholars debating whether the two clauses of the Fourth Amendment stand alone, or whether the second Warrant Clause modifies the first Reasonableness Clause by defining a reasonable search.").
175. See Taylor, supra note 139, at 23, 42-43; Kevin J. Allen, Overview of the Fourth Amendment, 88 Geo. L.J. 883, 883 (2000); Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 762 (1994); Jennifer Y. Buffaloe, Note, "Special Needs" and the Fourth Amendment: An Exception Poised to Swallow the Warrant Preference Rule, 32 Harv. C.R.-C.L. L. Rev. 529, 529 (1997) ("A small forest has been pulped by legal scholars debating whether the two clauses of the Fourth Amendment stand alone, or whether the second Warrant Clause modifies the first Reasonableness Clause by defining a reasonable search.").
176. See Taylor, supra note 139, at 23, 42-43; Kevin J. Allen, Overview of the Fourth Amendment, 88 Geo. L.J. 883, 883 (2000); Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 762 (1994); Jennifer Y. Buffaloe, Note, "Special Needs" and the Fourth Amendment: An Exception Poised to Swallow the Warrant Preference Rule, 32 Harv. C.R.-C.L. L. Rev. 529, 529 (1997) ("A small forest has been pulped by legal scholars debating whether the two clauses of the Fourth Amendment stand alone, or whether the second Warrant Clause modifies the first Reasonableness Clause by defining a reasonable search.").
177. See Taylor, supra note 139, at 23, 42-43; Kevin J. Allen, Overview of the Fourth Amendment, 88 Geo. L.J. 883, 883 (2000); Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 762 (1994); Jennifer Y. Buffaloe, Note, "Special Needs" and the Fourth Amendment: An Exception Poised to Swallow the Warrant Preference Rule, 32 Harv. C.R.-C.L. L. Rev. 529, 529 (1997) ("A small forest has been pulped by legal scholars debating whether the two clauses of the Fourth Amendment stand alone, or whether the second Warrant Clause modifies the first Reasonableness Clause by defining a reasonable search.").
178. See Amar, supra note 142, at 762.
179. Cf. supra notes 115-119 and accompanying text (discussing involvement in surveillance of non-governmental agents).
180. See 1 Rudstein et al., supra note 115, ¶ 2.08[1], at 2-307.
181. 1 Fishman & McKenna, supra note 24, § 1:5, at 1-10; see also Taylor, supra note 139, at 79-85 (noting the substantial differences between a search warrant and a surveillance order, and describing how Congress sought the constitutional acceptance of a surveillance order by favorable comparison to a search warrant).
182. See Congressional Research Service, Library of Congress, Constitution of the United States of America: Analysis and Interpretation, S. Rep. No. 103-6, at 1215-17 (Johnny H. Killian & George A. Costello, eds., 1996) [hereinafter CRS, Constitution of the United States]; Taylor, supra note 139, at 80.
183. See CRS, Constitution of the United States, supra note 147, at 1217-20
184. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (holding that a law permitting local police to randomly stop drivers to check for illegal drugs was a violation of the Fourth Amendment). In Edmond, the Court noted that it has upheld a limited number of programs where there was no individualized suspicion of wrongdoing - "where the program was designed to serve 'special needs, beyond the normal need for law enforcement.'" Id. at 37.
185. 1 Rudstein et al., supra note 115, ¶¶ 3.01, 3.02, 3.04, 3.05, 3.10, 3.11; cf. Amar, supra note 142, at 764-68 (describing several instances where warrants are not required for a search or seizure, including searches and seizures (1) incident to arrest, (2) in exigent circumstances, (3) made with consent, and (4) of objects in plain view). But see Physical Searches for Foreign Intelligence, supra note 131, at 19 (statement of Samuel Dash) (suggesting that consensual and administrative searches are "not truly exceptions").
186. 18 U.S.C. § 2511(2)(c) (1994) ("It shall not be unlawful . . . for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception."); id. § 2511(2)(d) ("It shall not be unlawful . . . for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State."). See generally 1 Fishman & McKenna, supra note 24, § 6:1, at 6-4. As the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance explained in its 1976 report, consensual surveillance is not a search within the meaning of the Fourth Amendment because consensual surveillance is meant to corroborate conversations rather than intercept them. See Report of the National Wiretapping Commission, supra note 23, at 10. A minority of commissioners expressed alarm that consensual surveillance had increased while court-authorized surveillance had decreased. Id.
187. See 1 Rudstein et al., supra note 115, ¶ 3.02[2][a], at 3-27.
188. See id. ¶ 3.02[2][b], at 3-33 to 3-38.
189. Id. ¶ 3.05[1], at 3-68.6(7) to 3-68.7.
190. Id. ¶ 3.10[1][a], at 3-143 to 3-148.
191. See id. ¶ 3.04[1], at 3-68.2.
192. See CRS, Constitution of the United States, supra note 147, at 1257.
193. Boyd v. United States, 116 U.S. 616 (1886).
194. Weeks v. United States, 232 U.S. 383 (1914).
195. See CRS, Constitution of the United States, supra note 147, at 1259.
196. See infra note 330-333 and accompanying text.
197. See CRS, Constitution of the United States, supra note 147, at 1257 ("[T]he Supreme Court has settled, not without dissent, on [the exclusionary rule] as [the] effective means to make real the right.").
198. See id.; Amar, supra note 142, at 759, 775-76.
199. See CRS, Constitution of the United States, supra note 147, at 1257 ("Theoretically, there are several alternatives to the exclusionary rule. An illegal search and seizure may be criminally actionable . . . .").
200. See Amar, supra note 142, at 759, 774 ("[W]e must remember the historic role played by civil juries and civil damage actions in which government officials were held liable for unreasonable intrusions against person, property, and privacy."). Professor Amar also notes that "any official who searched or seized could be sued by the citizen target in an ordinary trespass suit . . . . If the jury deemed the search or seizure unreasonable . . . the official would be obliged to pay (often heavy) damages." Id. at 774 (citation omitted).
201. See 18 U.S.C. § 2520(a) (1994).
202. See infra notes 349-353 and accompanying text.
203. See Taylor, supra note 139, at 52.
204. Boyd v. United States, 116 U.S. 616 (1886). Writing for the majority in Boyd, Justice Bradley quoted extensively from Lord Camden's decision in Entick v. Carrington, see id. at 627-29, about which he said: "every American statesmen, during our revolutionary and formative period as a nation, was undoubtedly familiar with this monument of English freedom, and considered it as the true and ultimate expression of constitutional law . . . ." Id. at 626-27.
205. Id. at 634-35.
206. Id.
207. Id. at 631-32.
208. See Taylor, supra note 139, at 51.
209. Gouled v. United States, 255 U.S. 298 (1921).
210. See Taylor, supra note 139, at 51 (quoting Gouled, 255 U.S. at 309). Professor Taylor noted that the existence of a rule prohibiting the use of "mere evidence" was often a surprise even to lawyers. Id.
211. Warden v. Hayden, 387 U.S. 294 (1967).
212. Id. at 296-97.
213. See Zurcher v. Stanford Daily, 436 U.S. 547, 547-48 (1978); see also Jeffrey Rosen, The Unwanted Gaze 65 & 243 n.21 (First Vintage Book ed. 2001) (noting that Congress statutorily narrowed Zurcher by enacting the Privacy Protection Act of 1980).
214. See Taylor, supra note 139, at 59; Amar, supra note 142, at 765-76 & n.26.
215. See Taylor, supra note 139, at 59; Amar, supra note 142, at 765-76 & n.26.
216. Cf. Amar, supra note 142, at 765, 803.
217. Olmstead v. United States, 277 U.S. 438 (1928).
218. See Samual Dash et al., The Eavesdroppers 23-25 (1959) (noting that newspapers stealing stories, gamblers stealing the results of horse-races, and stockbrokers stealing financial news were examples of early telegraphic wiretappers); OTA, Civil Liberties, supra note 112, at 31; Berkel & Rapaport, supra note 30, at 121- 22; Long, supra note 21, at 36-37
219. See Samual Dash et al., The Eavesdroppers 23-25 (1959) (noting that newspapers stealing stories, gamblers stealing the results of horse-races, and stockbrokers stealing financial news were examples of early telegraphic wiretappers); OTA, Civil Liberties, supra note 112, at 31; Berkel & Rapaport, supra note 30, at 121- 22; Long, supra note 21, at 36-37
220. See Samual Dash et al., The Eavesdroppers 23-25 (1959) (noting that newspapers stealing stories, gamblers stealing the results of horse-races, and stockbrokers stealing financial news were examples of early telegraphic wiretappers); OTA, Civil Liberties, supra note 112, at 31; Berkel & Rapaport, supra note 30, at 121-22; Long, supra note 21, at 36-37
221. See Samual Dash et al., The Eavesdroppers 23-25 (1959) (noting that newspapers stealing stories, gamblers stealing the results of horse-races, and stockbrokers stealing financial news were examples of early telegraphic wiretappers); OTA, Civil Liberties, supra note 112, at 31; Berkel & Rapaport, supra note 30, at 121- 22; Long, supra note 21, at 36-37
222. See Olmstead, 277 U.S. at 479-80 & n.13 (Brandeis, J., dissenting) (listing state wiretap statutes).
223. See id. at 471 (Brandeis, J., dissenting) (noting that the wiretaps spanned nearly five months during which time the federal agents amassed 775 pages of notes on conversations).
224. Id. at 464 ("The Amendment itself shows that the search is to be of material things - the person, the house, his papers or his effects.").
225. Id. at 464-65.
226. Id. at 466. See generally 1 Fishman & McKenna, supra note 24, § 1:3, at 1-4 to 1-6.
227. See generally 1 Fishman & McKenna, supra note 24, § 1:3, at 1-4 to 1-6. Thus, overhearing a conversation by pressing a listening device against a wall was permissible, see Goldman v. United States, 316 U.S. 129 (1942); while nailing or tacking a listening device into a wall crossed the threshold into the Fourth Amendment and thus required a warrant, see Clinton v. Virginia, 377 U.S. 158 (1964); Silverman v. United States, 365 U.S. 505 (1961).
228. See 1 Carr, supra note 25, § 1.3(b), at 1-8 to 1-9.
229. See OTA, Civil Liberties, supra note 112, at 32.
230. See generally 1 Fishman & McKenna, supra note 24, § 1:3, at 1-4 to 1-5. In 1937 the Supreme Court ruled in Nardone v. United States, 302 U.S. 379 (1937), that this prohibition applied to federal law enforcement agents, thus making it illegal for them to use wiretaps under the Act. See id. at 383. The Court later extended this interpretation to state law enforcement as well in Benanti v. United States, 355 U.S. 96, 100 (1957).
231. See OTA, Civil Liberties, supra note 112, at 32 (describing how wiretapping continued even after the Nardone decision); see also Long, supra note 21, at 79-101 (discussing the policies and practices of wiretapping by federal agencies of the 1920s through 1950s).
232. See OTA, Civil Liberties, supra note 112, at 32 (describing how wiretapping continued even after the Nardone decision); see also Long, supra note 21, at 79-101 (discussing the policies and practices of wiretapping by federal agencies of the 1920s through 1950s).
233. See OTA, Civil Liberties, supra note 112, at 32-33. Samuel Dash's 1959 book, The Eavesdroppers, brought to the public's attention the extent of wiretapping within the New York Police Department. See Physical Searches for Foreign Intelligence, supra note 131, at 15 (comments of Samuel Dash) ("I conducted the first nation-wide investigation of wiretapping and bugging, electronic surveillance in 1959 and wrote the book, "The Eveasdropper." [sic] That book, I believe, played a significant role in changing the Supreme Court's decisions overturning Olmstead [sic] and ultimately leading to the Katz decision and the Congress' decision to enact Title III of the Safe Streets Act of 1968.").
234. See OTA, Civil Liberties, supra note 112, at 32-33. Samuel Dash's 1959 book, The Eavesdroppers, brought to the public's attention the extent of wiretapping within the New York Police Department. See Physical Searches for Foreign Intelligence, supra note 131, at 15 (comments of Samuel Dash) ("I conducted the first nation-wide investigation of wiretapping and bugging, electronic surveillance in 1959 and wrote the book, "The Eveasdropper." [sic] That book, I believe, played a significant role in changing the Supreme Court's decisions overturning Olmstead [sic] and ultimately leading to the Katz decision and the Congress' decision to enact Title III of the Safe Streets Act of 1968.").
235. See OTA, Civil Liberties, supra note 112, at 32-33. Samuel Dash's 1959 book, The Eavesdroppers, brought to the public's attention the extent of wiretapping within the New York Police Department. See Physical Searches for Foreign Intelligence, supra note 131, at 15 (comments of Samuel Dash) ("I conducted the first nation-wide investigation of wiretapping and bugging, electronic surveillance in 1959 and wrote the book, "The Eveasdropper." [sic] That book, I believe, played a significant role in changing the Supreme Court's decisions overturning Olmstead [sic] and ultimately leading to the Katz decision and the Congress' decision to enact Title III of the Safe Streets Act of 1968.").
236. Berger v. New York, 388 U.S. 41 (1967).
237. 388 U.S. at 58-60.
238. See 1 Fishman & McKenna, supra note 24, §§ 1:4, 1:6, at 1-6 to 1-7, 1-10 to 1-11.
239. Katz v. United States, 389 U.S. 347 (1967).
240. The Court explained: We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the "trespass" doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment. Katz, 389 U.S. at 353.
241. Id. at 351.
242. See id. at 353-57. See generally 1 Fishman & McKenna, supra note 24, § 1:4, at 1-7 to 1-8.
243. See Kyllo v. United States, 121 S. Ct. 2038, 2042-43 (2001) (noting that Court has employed Justice Marian's formulation from his concurrence in Katz for determining the constitutionality of pen registers and aerial surveillance).
244. Katz, 389 U.S. at 361 (Harlan, J., concurring).
245. Smith v. Maryland, 442 U.S. 735 (1979).
246. See supra note 61 and accompanying text.
247. Smith, 442 U.S. at 745-46.
248. See, e.g., Dow Chemical Co. v. United States, 476 U.S. 227, 235-37 (1986).
249. Dow Chemical Co. v. United States, 476 U.S. 227 (1986).
250. See id. at 241-42 (Powell, J., concurring in part and dissenting in part).
251. Id. at 239.
252. Id. ("We conclude that the open areas of an industrial plant complex with numerous plant structures spread over an area of 2,000 acres are not analogous to the "curtilage" of a dwelling for purposes of aerial surveillance; such an industrial complex is more comparable to an open field . . . .").
253. Cf. United States v. Dunn, 480 U.S. 294, 301 (1987) (implying that anything within a home's curtilage was within the ambit of the Fourth Amendment).
254. Florida v. Riley, 488 U.S. 445 (1989).
255. California v. Ciraolo, 476 U.S. 207 (1986).
256. In Ciraolo, the police, acting on a tip that a suspect was growing marijuana, were able to observe marijuana plants while flying over the target's home in a fixed-wing aircraft at an altitude of 1000 feet. 476 U.S. at 209. In Riley, a police officer, flying in a helicopter from 400 feet, was able to look in through openings in the roof and sides of a greenhouse and observe "what he thought was marijuana growing in the structure." 488 U.S. at 448. Riley's greenhouse was located on a five-acre plot of land in rural Florida and was "obscured from view from surrounding property by trees, shrubs, and [a] mobile home." Id.
257. The Court in Ciralo explained: The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible. . . . The observations by Officers Shutz and Rodriguez in this case took place within public navigable airspace . . . . Ciraolo, 476 U.S. at 213-14); see also Dow Chemical, 476 U.S. at 239; Riley, 488 U.S. at 449 ("As a general proposition, the police may see what may be seen 'from a public vantage point where [they have] a right to be.'" (quoting Ciraolo)).
258. See 1 Rudstein, supra note 115, ¶ 2.03[2][f], at 2-82 ("The use of binoculars, a telescope, or other optical aid that merely enlarges does not constitute a 'search' within the meaning of the Fourth Amendment when the police use the device to observe individuals, objects, or activities exposed to public view.").
259. See id. ¶ 2.03[2][e], at 2-79 to 2-80 ("It is well-settled that where an officer's observations do not otherwise constitute a 'search,' his use of a flashlight or other artificial means to illuminate a darkened area does not transform those observations into a 'search' for purposes of the Fourth Amendment.").
260. United States v. Karo, 468 U.S. 705 (1984).
261. United States v. Knotts, 460 U.S. 276 (1983)
262. See generally 2 Fishman & McKenna, supra note 24, at §§ 28:1, 28:6-28:17, at 28-3, 28-8 to 28-25.
263. See Karo, 468 U.S. at 714 (holding that the Fourth Amendment is implicated when beeper tracks an object into a private dwelling); Knotts, 460 U.S. at 285 (holding that the Fourth Amendment is not violated when beeper tracks an object on a public highway). See generally 2 Fishman & McKenna, supra note 24, §§ 28:1, 28:2, at 28-2 to 28-6; Jennifer Gruda, Electronic Surveillance, 88 Geo. L.J. 990, 1011-12 (2000).
264. Kyllo v. United States, 121 S. Ct. 2038, 2046 (2001) ("Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant.").
265. See Dow Chemical Co. v. United States, 476 U.S. 227, 240-43 (1986) (Powell, J., concurring in part and dissenting in part) (describing in fuller detail Dow's efforts to maintain secrecy of its compound and the highly sophisticated camera used by EPA to photograph the compound).
266. See Kyllo, 121 S. Ct. at 2044 ("While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.").
267. Id. at 2045; see also id. at 2041-42 ("'At the very core' of the Fourth Amendment 'stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).
268. See id. at 2041, 2043 (citing Silverman).
269. See supra note 199 and accompanying text.
270. See Kyllo, 121 S. Ct. at 2045 ("Limiting the prohibition of thermal imaging to 'intimate details' would not only be wrong in principle; it would be impractical in application, failing to provide 'a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment.'" (quoting Oliver v. United States, 466 U.S. 170, 181 (1984)).
271. Cf. Dickerson v. United States, 530 U.S. 428 (2000) (holding that law enacted by Congress to overrule result in Miranda v. Arizona, 384 U.S. 436 (1966), was not valid); City of Boerne v. Flores, 521 U.S. 507, 535-36 (1997) (holding that Congress exceeded its constitutional bounds in enacting a law to overturn a Supreme Court ruling construing the right to freedom of religion).
272. See supra notes 181-188 and accompanying text.
273. See supra notes 189-191 and accompanying text.
274. Pub. L. No. 90-351, Title III, 82 Stat. 197, 211 (1968) (codified as amended at 18 U.S.C. §§ 2510-2522 (1994 & Supp. V 1999).
275. Cf. 1 Carr, supra note 25, passim; 1 Fishman & McKenna, supra note 24, passim.
276. Cf. 1 Carr, supra note 25, passim; 1 Fishman & McKenna, supra note 24, passim.
277. 18 U.S.C. § 2517. See generally 1 Carr, supra note 25, § 2.2, at 2-4 to 2-5; 1 Fishman & McKenna, supra note 24, § 1:6, at 1-10. Although Title III also applies to private citizens, the focus here is on the regulations created by this legislation on government agents.
278. See § 801, 82 Stat. at 211. In enacting Title III, Congress made four findings, the fourth of which was that: To safeguard the privacy of innocent persons, the interception of wire or oral communications where none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court. Interception of wire and oral communications should further be limited to certain major types of offenses and specific categories of crime with assurances that the interception is justified and that the information obtained thereby will not be misused. Id. at 211-12. See generally 1 Fishman & McKenna, supra note 24, at § 1:6, at 1-10 to 1-11.
279. See supra note 193 and accompanying text; cf. supra note 135.
280. See Taylor, supra note 139, at 79-80; see also 1 Carr, supra note 25, § 2.5(a), at 2-20 to 2-21 (comparing conventional and electronic searches); Annis supra note 17, at 34 (same).
281. See Taylor, supra note 139, at 79-80; see also 1 Carr, supra note 25, § 2.5(a), at 2-20 to 2-21 (comparing conventional and electronic searches); Annis supra note 17, at 34 (same).
282. See Taylor, supra note 139, at 79-80; see also 1 Carr, supra note 25, § 2.5(a), at 2-20 to 2-21 (comparing conventional and electronic searches); Annis supra note 17, at 34 (same).
283. See 1 Fishman & McKenna, supra note 24, § 1:5, at 1-8 to 1-10; Taylor, supra note 139, at 83.
284. See 1 Fishman & McKenna, supra note 24, § 1:5, at 1-8 to 1-10; Taylor, supra note 139, at 83.
285. Annis, supra note 17, at 33.
286. Id. at 33-34. Although a surveillance order can be granted only for thirty days, see 18 U.S.C. § 2518(5) (1994), it can - and very often is - extended for additional thirty day periods. See Wiretap Report 1999, supra note 26, at 8. According to the Wiretap Report 1999: A total of 1,367 extensions were requested and authorized in 1999 (an increase of 17 percent). The average length of an extension was 29 days, up from 27 days in 1998. The longest federal intercept occurred in the Western District of Texas, where the original 30-day order was extended nine times to complete a 289-day wire-tap used in a narcotics investigation. Among state wiretaps terminating during 1999, the longest was used in a racketeering investigation in New York County, New York; this wiretap required a 30-day order to be extended 16 times to keep the intercept in operation 510 days. In contrast, 19 federal intercepts and 77 state intercepts each were in operation for less than a week. Id.
287. 18 U.S.C. § 2518(1); see also Annis, supra note 17, at 35.
288. The process of obtaining judicial authorization for a wiretap, from the perspective of the law-enforcement officers who draft these applications, can be onerous. For an instructive discussion of the process and pitfalls of applying for an electronic wiretap, see Annis, supra note 17, at 35-39, and Monica Bachner, So You've Always Wanted to do a Wiretap: Practical Tips If You Never Have, USABulletin, Sept. 1997, at 40, excerpts reprinted in 9 Department of Justice Manual § 9-60.202A, at 9-1214.42 (1987). These articles explain that defense attorneys will generally pounce on mistakes or omissions in an application and seek to exclude the evidence. See Annis, supra note 17, at 35 ("[T]he necessity requirement seems to be one of the areas of concentrated effort in the defense bar's attempts to suppress the results of super search warrants.").
289. See generally 1 Fishman & McKenna, supra note 24, § 1:6, at 1-10 to 1-12. Since 1968, Congress has expanded the crimes for which a wiretap is authorized from 26 to nearly 100. See Rosen, The Unwanted Gaze, supra note 178, at 37. For a general discussion of the federalization of crimes, see John S. Baker, Jr., State Police Powers and the Federalization of Local Crime, 72 Temp. L. Rev. 673 (1999), which describes the expanding federal criminalization of local crimes, the reasons for the trend, and its consequences for the courts.
290. See generally 1 Fishman & McKenna, supra note 24, § 1:6, at 1-10 to 1-12. Since 1968, Congress has expanded the crimes for which a wiretap is authorized from 26 to nearly 100. See Rosen, The Unwanted Gaze, supra note 178, at 37. For a general discussion of the federalization of crimes, see John S. Baker, Jr., State Police Powers and the Federalization of Local Crime, 72 Temp. L. Rev. 673 (1999), which describes the expanding federal criminalization of local crimes, the reasons for the trend, and its consequences for the courts.
291. See generally 1 Fishman & McKenna, supra note 24, § 1:6, at 1-10 to 1-12. Since 1968, Congress has expanded the crimes for which a wiretap is authorized from 26 to nearly 100. See Rosen, The Unwanted Gaze, supra note 178, at 37. For a general discussion of the federalization of crimes, see John S. Baker, Jr., State Police Powers and the Federalization of Local Crime, 72 Temp. L. Rev. 673 (1999), which describes the expanding federal criminalization of local crimes, the reasons for the trend, and its consequences for the courts.
292. Pub. L. No. 99-508, 100 Stat. 1848 (1986) (codified as amended in scattered sections of 18 U.S.C.).
293. Pub. L. No. 103-414, 108 Stat. 4279 (1994) (codified as amended at 18 U.S.C. § 2522, 47 U.S.C. §§ 1001-1021 (1994 & Supp. V 1999)).
294. See generally 1 Fishman & McKenna, supra note 24, § 1:9, at 1-19 (noting that "the overall result [of the ECPA] was a significant improvement in the law"). Congress also codified the rules generally in practice by law enforcement for pen registers and trap-and-trace devices. Congress created for law enforcement the ability to conduct "roving wiretaps," which allow the government to listen in on any phone line a targeted person is likely to use, rather than allowing for a tap only on a particular phone known to be used by the person and which is the specific subject of the court-ordered tap. See generally 1 Fishman & McKenna, supra note 24, § 1:9 at 1-19 to 1-20. (The phrase "roving wiretap" does not appear in the statute. See Goldsmith, supra note 40, at 411.)
295. Pub. L. No. 103-414, § 202, 108 Stat. 4279, 4290 (amending 18 U.S.C. §§ 2510, 2511 to include cordless telephones within Title III coverage). See generally 1 Fishman & McKenna, supra note 24, § 3:19, at 3-25.
296. Pub. L. No. 95-511, 92 Stat. 1783 (1978) (codified as amended at 50 U.S.C. §§ 1801-1863 (1994 & Supp. V 1999).
297. Despite the urging of a sizeable minority on a commission to review the wiretap laws, see Report of the National Wiretapping Commission, supra note 23, at 177 (Minority Report, James Abourezk et al.) (criticizing the majority opinion for "fail[ing] to address the subject of electronic surveillance for national security purposes"), the majority believed that national security surveillance was not covered by Title III and chose not to include national-security surveillance in its investigation. See id. at 27 ("The Commission did not undertake a study of . . . electronic surveillance for national security purposes because Title III specifically excludes electronic surveillance for national security purposes from its scope."). In response, the Minority notes that Title III is actually neutral on the president's authority to order surveillance for national security and that Congress empowered the Commission to investigate such sensitive matters. See id. at 177-78 (Minority Report, James Abourezk et al.).
298. United States v. United States District Court (Keith), 407 U.S. 297 (1972).
299. Id. at 323-24.
300. Id. at 322 ("[W]e do not hold that the same type of standards and procedures prescribed by Title III are necessarily applicable to this case.").
301. Id. ("Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III.").
302. See supra note 135 and accompanying text.
303. See 2 Fishman & McKenna, supra note 24, § 27:4, at 27-6 to 27-9; Chiarella & Newton, supra note 131, at 29-32.
304. See 2 Fishman & McKenna, supra note 24, § 27:4, at 27-6 to 27-9; Chiarella & Newton, supra note 131, at 29-32.
305. See 2 Carr, supra note 25, § 9.3(a), at 9-6.
306. See id.
307. Pub. L. No. 100-618, 102 Stat. 3195 (1988) (codified at 18 U.S.C. § 2710 (1994)). The Video Privacy Protection Act of 1988, also known as the "Bork Bill," restricts the disclosure of information about what videos an individual rents. The act entitles law enforcement access only to identifiable customer information and requires that the targets of investigations into video rental patterns be notified about law enforcement subpoenas. See 18 U.S.C. § 2710. See generally Robert Gellman, Privacy, in Federal Information Policies in the 1990s: Views and Perspectives 143 tbl.7.3 (Peter Hernon et al. eds., 1995).
308. Pub. L. No. 93-579, 88 Stat. 1896, tit. 5, § 552 (1974) (codified as amended at 5 U.S.C. § 552a (1994)). This statute "places limits on the types of information federal agencies may collect on individuals." Diffie & Landau, supra note 20, at 136. Congress later enacted the Computer Matching and Privacy Protection Act of 1988, Pub. L. No. 100-503, 102 Stat. 2507 (1988), to amend and modernize the Privacy Act because it was increasingly out of date with modern computing and record-keeping. See Gellman, supra note 258, at 146. However, according to Gellman, the Act's core purposes have not been effectively carried out for a number of reasons: "[l]ack of administrative oversight, changing technology and record-keeping practices, and limited congressional attention." Id. at 147. In particular, the Office of Management and Budget ("OMB"), which is charged with oversight of the Privacy Act, has been criticized for not keeping up its responsibilities under the Privacy Act. Id. at 146.
309. Pub. L. No. 96-440, 94 Stat. 1879 (1980) (codified at 42 U.S.C. § 2000aa(a) (1994)).
310. Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See supra note 178 and accompanying text for a discussion of Zurcher.
311. Pub. L. No. 89-487, 80 Stat. 250 (1966) (codified at 5 U.S.C. § 552).
312. See Gellman, supra note 258, at 147 (describing how FOIA "permits any person to request records in the possession of a Federal agency" and noting how FOIA has an important privacy component because the courts have interpreted it to exclude the disclosure of personal information).
313. See id. (noting that there are nine exemptions to the requirement that a federal government agency disclose requested information, including "national security information" and "law enforcement investigatory records"); see, e.g., Master v. FBI, 926 F. Supp. 193, 198 (D. D.C. 1996) (discussing exemption 7(c)).
314. See Gellman, supra note 258, at 143 tbl.7.3, 151 (listing or mentioning as privacy-related legislation the Cable Communications Policy Act of 1984, the Family Educational Rights and Privacy Act (the "Buckley Amendment"), the Video Privacy Protection Act of 1988 (the "Bork Bill"), the Right to Financial Privacy Act, the Alcohol and Drug Abuse Patient Record Confidentiality Laws, the Telephone Consumer Protection Act, and the Driver's Privacy Protection Act of 1994).
315. Since 1968, Congress has slowly permitted lower-level personnel in the Attorney General's office to apply for wiretaps and has greatly expanded the crimes for which a wiretap can be authorized. See 18 U.S.C. 2516(1) (1994 & Supp. V 1999); supra note 243 and accompanying text.
316. 18 U.S.C. § 2518(1)(b) (1994).
317. See Goldsmith, supra note 40, at 411 n.61 (citing Department of Justice Memorandum from William Weld, Assistant Attorney General, Criminal Division to All United States Attorneys and Strike Force Chiefs, Dec. 15, 1986, at 10-11). Goldsmith argues that "[i]n many cases, roving surveillance reflects a broadened application of the particularity requirement rather than an exception thereto." Id. at 411 n.61 (emphasis added). For interception of oral communications, a roving wiretap can be obtained without specification of location by convincing a judge that "specification is not practical." 18 U.S.C. § 2518(11)(a)(iii). For interception of wire or electronic communications, a roving wiretap can be obtained without specification of location by "showing that there is probable cause to believe that the person's actions could have the effect of thwarting interception from a specified facility." Id. § 2518(11)(b)(ii). All applications for roving wiretaps must be approved by an official within the Department of Justice who is an Associate Attorney General or higher. Id. § 2518(11)(a)(i), (b)(i).
318. See Goldsmith, supra note 40, at 410.
319. 47 U.S.C. §§ 1002-1009, 1021 (Supp. V 1999).
320. On September 13, two days after the attack, the Senate attached an amendment, entitled the Combating Terrorism Act of 2001, to an appropriations bill for the Justice Department. See Senate Amendment 1562, 147 Cong. Rec. S9401 (daily ed. Sept. 13, 2001). See generally Alvarez, supra note 7. Several days later, Attorney General John Ashcroft introduced a more comprehensive legislative agenda which included nearly identical provisions to Senate Amendment 1562, the Combating Terrorism Act. See Krim, supra note 7.
321. Apparently, Congress was pressured to act quickly on the bill submitted by Attorney General Ashcroft. See Krim, supra note 7 ("The White House is pushing for Capitol Hill to act by the end of the week, according to a congressional source."); Robert E. Pierre, Wisconsin Senator Emerges as a Maverick, Wash. Post, Oct. 27, at A8 (reporting that Senator Russell Feingold, Democrat of Wisconsin and the only senator to vote against the legislation, explained that "the bill's title-the 'USA Patriot Act' - was part of the 'relentless' pressure to move it swiftly"). For example, Senate Amendment 1562 was passed hastily and with virtually no debate. See Krim, supra note 7 (noting that the amendment was passed by a voice vote late at night).
322. See Krim, supra note 7 ("A coalition of public interest groups from across the political spectrum has formed to try to stop Congress and the Bush administration from rushing to enact counterterrorism measures before considering their effect on Americans' privacy and civil rights."); Robin Toner, Bush Law-Enforcement Plan Troubles Both Right and Left, N.Y. Times, Sept. 28, 2001, at A1. One highly controversial provision of the proposed legislation, which would have permitted the attorney general to detain legal immigrants suspected of being involved in terrorism for indefinite periods without filing charges, was dropped. See id.; Robin Toner & Neil A. Lewis, House Passes Terrorism Bill Much Like Senate's, but with 5-Year Limit, N.Y. Times, Oct. 13, 2001, at B6 [hereinafter Toner & Lewis, House Passes Terrorism Bill].
323. See Krim, supra note 7 ("A coalition of public interest groups from across the political spectrum has formed to try to stop Congress and the Bush administration from rushing to enact counterterrorism measures before considering their effect on Americans' privacy and civil rights."); Robin Toner, Bush Law-Enforcement Plan Troubles Both Right and Left, N.Y. Times, Sept. 28, 2001, at A1. One highly controversial provision of the proposed legislation, which would have permitted the attorney general to detain legal immigrants suspected of being involved in terrorism for indefinite periods without filing charges, was dropped. See id.; Robin Toner & Neil A. Lewis, House Passes Terrorism Bill Much Like Senate's, but with 5-Year Limit, N.Y. Times, Oct. 13, 2001, at B6 [hereinafter Toner & Lewis, House Passes Terrorism Bill].
324. See Krim, supra note 7 ("A coalition of public interest groups from across the political spectrum has formed to try to stop Congress and the Bush administration from rushing to enact counterterrorism measures before considering their effect on Americans' privacy and civil rights."); Robin Toner, Bush Law-Enforcement Plan Troubles Both Right and Left, N.Y. Times, Sept. 28, 2001, at A1. One highly controversial provision of the proposed legislation, which would have permitted the attorney general to detain legal immigrants suspected of being involved in terrorism for indefinite periods without filing charges, was dropped. See id.; Robin Toner & Neil A. Lewis, House Passes Terrorism Bill Much Like Senate's, but with 5-Year Limit, N.Y. Times, Oct. 13, 2001, at B6 [hereinafter Toner & Lewis, House Passes Terrorism Bill].
325. See Krim, supra note 7 ("A coalition of public interest groups from across the political spectrum has formed to try to stop Congress and the Bush administration from rushing to enact counterterrorism measures before considering their effect on Americans' privacy and civil rights."); Robin Toner, Bush Law-Enforcement Plan Troubles Both Right and Left, N.Y. Times, Sept. 28, 2001, at A1. One highly controversial provision of the proposed legislation, which would have permitted the attorney general to detain legal immigrants suspected of being involved in terrorism for indefinite periods without filing charges, was dropped. See id.; Robin Toner & Neil A. Lewis, House Passes Terrorism Bill Much Like Senate's, but with 5-Year Limit, N.Y. Times, Oct. 13, 2001, at B6 [hereinafter Toner & Lewis, House Passes Terrorism Bill].
326. Several commentators criticized the proposals, suggesting that portions of the draft legislation had little if anything to do with terrorism and instead were items on the Department of Justice's "wish list" of new law-enforcement capabilities. See The Home Front: Security and Liberty, supra note 8 ("[O]ther proposals from the attorney general do not seem to provide tools agents really need. In fact, some amount to a wish list of things that the Justice Department and the Federal Bureau of Investigation have unsuccessfully lobbied for in the past and that do not make sense now. Other provisions suffer from a blunderbuss approach."); Erwin Chemerinsky, Giving Up Our Rights for Little Gain, L.A. Times, Sept. 27, 2001, at 17 ("Atty. Gen. John Ashcroft's plan for fighting terrorism seems to include all the bad ideas for greater law enforcement powers that have been rejected over the years."). These commentators implied that the Department of Justice was exploiting the present situation to enact measures that it had sought unsuccessfully prior to and irrespective of the specific occurrence. See Pierre, supra note 272 ("'This is not a bill that is carefully tailored to the terrorism problem. The whole tenor of the debate was 'Let's grab as much as we can' given the fear of terrorism.'" (quoting Senator Russell Feingold)). An editorial in the New York Times observed that "Congress went down a similar path after the 1995 Oklahoma City bombing."The Home Front: Security and Liberty, supra note 8. The Antiterrorism and Effective Death Penalty Act "which passed by a wide margin, broadened the government's ability to detain and deport legal immigrants, even though immigrants had nothing to do with the bombing." Id.; cf. Greenhouse, supra note 6 (noting that times of crisis most test our commitment to our ideals but that "times of deep insecurity, grief and anger . . . in fact have often evoked the worst of our national instincts"); Harvey A. Silverglate, Let's Not Trade Freedom for Security, Nat'l L.J., Sept., 24, 2001, at A26 (urging that the administration, the "police agencies," and Congress not pass "draconian legislation" which will have "severe limitations on civil liberties [and] no appreciable increase in security," as occurred when Congress enacted the Antiterrorism and Effective Death Penalty Act, which "has all but eviscerated the ancient writ of habeas corpus").
327. Several commentators criticized the proposals, suggesting that portions of the draft legislation had little if anything to do with terrorism and instead were items on the Department of Justice's "wish list" of new law-enforcement capabilities. See The Home Front: Security and Liberty, supra note 8 ("[O]ther proposals from the attorney general do not seem to provide tools agents really need. In fact, some amount to a wish list of things that the Justice Department and the Federal Bureau of Investigation have unsuccessfully lobbied for in the past and that do not make sense now. Other provisions suffer from a blunderbuss approach."); Erwin Chemerinsky, Giving Up Our Rights for Little Gain, L.A. Times, Sept. 27, 2001, at 17 ("Atty. Gen. John Ashcroft's plan for fighting terrorism seems to include all the bad ideas for greater law enforcement powers that have been rejected over the years."). These commentators implied that the Department of Justice was exploiting the present situation to enact measures that it had sought unsuccessfully prior to and irrespective of the specific occurrence. See Pierre, supra note 272 ("'This is not a bill that is carefully tailored to the terrorism problem. The whole tenor of the debate was 'Let's grab as much as we can' given the fear of terrorism.'" (quoting Senator Russell Feingold)). An editorial in the New York Times observed that "Congress went down a similar path after the 1995 Oklahoma City bombing."The Home Front: Security and Liberty, supra note 8. The Antiterrorism and Effective Death Penalty Act "which passed by a wide margin, broadened the government's ability to detain and deport legal immigrants, even though immigrants had nothing to do with the bombing." Id.; cf. Greenhouse, supra note 6 (noting that times of crisis most test our commitment to our ideals but that "times of deep insecurity, grief and anger . . . in fact have often evoked the worst of our national instincts"); Harvey A. Silverglate, Let's Not Trade Freedom for Security, Nat'l L.J., Sept., 24, 2001, at A26 (urging that the administration, the "police agencies," and Congress not pass "draconian legislation" which will have "severe limitations on civil liberties [and] no appreciable increase in security," as occurred when Congress enacted the Antiterrorism and Effective Death Penalty Act, which "has all but eviscerated the ancient writ of habeas corpus").
328. Several commentators criticized the proposals, suggesting that portions of the draft legislation had little if anything to do with terrorism and instead were items on the Department of Justice's "wish list" of new law-enforcement capabilities. See The Home Front: Security and Liberty, supra note 8 ("[O]ther proposals from the attorney general do not seem to provide tools agents really need. In fact, some amount to a wish list of things that the Justice Department and the Federal Bureau of Investigation have unsuccessfully lobbied for in the past and that do not make sense now. Other provisions suffer from a blunderbuss approach."); Erwin Chemerinsky, Giving Up Our Rights for Little Gain, L.A. Times, Sept. 27, 2001, at 17 ("Atty. Gen. John Ashcroft's plan for fighting terrorism seems to include all the bad ideas for greater law enforcement powers that have been rejected over the years."). These commentators implied that the Department of Justice was exploiting the present situation to enact measures that it had sought unsuccessfully prior to and irrespective of the specific occurrence. See Pierre, supra note 272 ("'This is not a bill that is carefully tailored to the terrorism problem. The whole tenor of the debate was 'Let's grab as much as we can' given the fear of terrorism.'" (quoting Senator Russell Feingold)). An editorial in the New York Times observed that "Congress went down a similar path after the 1995 Oklahoma City bombing."The Home Front: Security and Liberty, supra note 8. The Antiterrorism and Effective Death Penalty Act "which passed by a wide margin, broadened the government's ability to detain and deport legal immigrants, even though immigrants had nothing to do with the bombing." Id.; cf. Greenhouse, supra note 6 (noting that times of crisis most test our commitment to our ideals but that "times of deep insecurity, grief and anger . . . in fact have often evoked the worst of our national instincts"); Harvey A. Silverglate, Let's Not Trade Freedom for Security, Nat'l L.J., Sept., 24, 2001, at A26 (urging that the administration, the "police agencies," and Congress not pass "draconian legislation" which will have "severe limitations on civil liberties [and] no appreciable increase in security," as occurred when Congress enacted the Antiterrorism and Effective Death Penalty Act, which "has all but eviscerated the ancient writ of habeas corpus").
329. Several commentators criticized the proposals, suggesting that portions of the draft legislation had little if anything to do with terrorism and instead were items on the Department of Justice's "wish list" of new law-enforcement capabilities. See The Home Front: Security and Liberty, supra note 8 ("[O]ther proposals from the attorney general do not seem to provide tools agents really need. In fact, some amount to a wish list of things that the Justice Department and the Federal Bureau of Investigation have unsuccessfully lobbied for in the past and that do not make sense now. Other provisions suffer from a blunderbuss approach."); Erwin Chemerinsky, Giving Up Our Rights for Little Gain, L.A. Times, Sept. 27, 2001, at 17 ("Atty. Gen. John Ashcroft's plan for fighting terrorism seems to include all the bad ideas for greater law enforcement powers that have been rejected over the years."). These commentators implied that the Department of Justice was exploiting the present situation to enact measures that it had sought unsuccessfully prior to and irrespective of the specific occurrence. See Pierre, supra note 272 ("'This is not a bill that is carefully tailored to the terrorism problem. The whole tenor of the debate was 'Let's grab as much as we can' given the fear of terrorism.'" (quoting Senator Russell Feingold)). An editorial in the New York Times observed that "Congress went down a similar path after the 1995 Oklahoma City bombing."The Home Front: Security and Liberty, supra note 8. The Antiterrorism and Effective Death Penalty Act "which passed by a wide margin, broadened the government's ability to detain and deport legal immigrants, even though immigrants had nothing to do with the bombing." Id.; cf. Greenhouse, supra note 6 (noting that times of crisis most test our commitment to our ideals but that "times of deep insecurity, grief and anger . . . in fact have often evoked the worst of our national instincts"); Harvey A. Silverglate, Let's Not Trade Freedom for Security, Nat'l L.J., Sept., 24, 2001, at A26 (urging that the administration, the "police agencies," and Congress not pass "draconian legislation" which will have "severe limitations on civil liberties [and] no appreciable increase in security," as occurred when Congress enacted the Antiterrorism and Effective Death Penalty Act, which "has all but eviscerated the ancient writ of habeas corpus").
330. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
331. Jonathan Krim & Robert O'Harrow Jr., Bush Signs into Law New Enforcement Era: U.S. Gets Broad Electronic Powers, Wash. Post, Oct. 27, 2001, at A6; see also 147 Cong. Rec. S10990 (daily ed. Oct. 25, 2001) (statement of Patrick Leahy) (describing the events surrounding the Act's consideration and passage).
332. Id.
333. USA Patriot Act, § 201 (amending 18 U.S.C. 2516(1)); see Krim & O'Harrow Jr., supra note 276. The USA Patriot Act also authorized law enforcement to conduct wiretapping for crimes related to computer fraud and abuse. See USA Patriot Act, § 202.
334. USA Patriot Act, §§ 214, 216 (amending 50 U.S.C. §§ 1842, 1843 and 18 U.S.C. §§ 3121, 3123, 3127); see also 147 Cong. Rec. S10999 (statement of Patrick Leahy). Senator Leahy explained: I have long supported modernizing the pen register and trap and trace device laws by modifying the statutory language to cover the use of these orders on computer transmissions; to remove the jurisdictional limits on service of these orders; and to update the judicial review procedure, which, unlike any other area in criminal procedure, bars the exercise of judicial discretion in reviewing the justification for the order. The USA Act, in section 216, updates the pen register and trap and trace laws only in two out of three respects I believe are important, and without allowing meaningful judicial review. 147 Cong. Rec. S10999 (emphasis added).
335. USA Patriot Act, § 206 (amending 50 U.S.C. §§ 1805(c)(2)(B)). The "roving wiretap" can now be obtained upon a showing that "the actions of the target of the application may have the effect of thwarting the identification of a specified person." Id.; see also 147 Cong. Rec. S10998 (statement of Patrick Leahy).
336. USA Patriot Act, § 218 (amending 50 U.S.C. §§ 1804(a)(7)(B), 1823(a)(7)(B)). Previously, "the secret procedures and different probable cause standards under FISA [could] be used only if a high-level executive official certifies that 'the purpose' is to obtain foreign intelligence formation." See 147 Cong. Rec. 411003 (statement of Patrick Leahy). The new standard adopted in the Act is "a significant purpose." See USA Patriot Act, § 218; 147 Cong. Rec. S11004.
337. USA Patriot Act, § 207 (amending 50 U.S.C. §§ 1805, 1824); 147 Cong. Rec. S11003 (statement of Patrick Leahy). As Senator Leahy explained: [T]he bill changes the initial period of the surveillance from 90 to 120 days and changes the period for extensions from 90 days to one year. The initial 120-day period provides for a review of the results of the surveillance or search directed at an individual before one-year extensions are requested. 147 Cong. Rec. S11003 (daily ed. Oct. 25, 2001).
338. USA Patriot Act, § 213 (amending 18 U.S.C. § 3103a); 147 Cong. Rec. S11002 (statement of Patrick Leahy). Senator Leahy explained sneak-and-peak warrants as follows: Two circuit courts of appeal, the Second and the Ninth Circuits, have recognized a limited exception to this requirement [that a person be notified of a search]. When specifically authorized by the issuing judge or magistrate, the officers may delay providing notice of the search to avoid compromising an ongoing investigation or for some other good reason. However, this authority has been carefully circumscribed. First, the Second and Ninth Circuit cases have dealt only with situations where the officers search a premises without seizing any tangible property. . . . Second, the cases have required that the officers seeking the warrant must show good reason for the delay. Finally, while the courts have allowed notice of the search may be delayed, it must be provided within a reasonable period thereafter, which should generally be no more than seven days. . . . . . . . . . . . [T]he bill prohibits the government from seizing any tangible property or any wire or electronic communication or stored electronic information unless it makes a showing of reasonable necessity for the seizure. . . . Second, the provision now requires that notice be given within a reasonable time of the execution of the warrant rather than giving a blanket authorization for up to a 90-day delay. What constitutes a reasonable time, of course, will depend upon the circumstances of the particular case. But I would expect courts to be guided by the teachings of the Second and the Ninth Circuits that, in the ordinary case, a reasonable time is no more than seven days. Id. at S11002-03.
339. USA Patriot Act, § 203(b)-(d) (amending 18 U.S.C. §§ 2510, 2517); 147 Cong. Rec. S10998 (statement of Patrick Leahy) (discussing the information-sharing provisions of the Act).
340. USA Patriot Act, § 224.
341. As Professor Lewis Katz observed in 1990, "the Court has permitted police surveillance powers to grow almost unchecked to their present epic proportions . . . [and that police] may use any number of sophisticated surveillance techniques without judicial authorization or review." Lewis R. Katz, In Search of a Fourth Amendment for the Twenty-first Century, 65 Ind. L.J. 549, 549 (1990). In 1969, Professor Telford Taylor noted that "old habits and notions of personal privacy . . . are in grave danger of burial under an avalanche of new surveillance devices." Taylor, supra note 139, at 19; see also Froomkin, supra note 48, at 1463 ("I will argue that both the state and the private sector now enjoy unprecedented abilities to collect personal data, and that technological developments suggest that costs of data collection and surveillance will decrease, while the quantity and quality of data will increase."); infra note 423 and accompanying text; cf. Kyllo v. United States, 121 S. Ct. 2038, 2043 (2001) ("It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology."); Rosen, The Unwanted Gaze, supra note 178, at 58 ("[T]he Supreme Court's response to the growth of new technologies of monitoring and surveillance . . . has proved to be distressingly passive at every turn.").
342. See ABA Standards for Electronic Surveillance, supra note 67, at 5.
343. Id. at 6.
344. Id.
345. See Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 415 (1974) (noting the immense discretion of police officers on the street and how little controls are placed on them); see also infra text accompanying notes 360-61.
346. Richard S. Julie, Note, High-Tech Surveillance Tools and the Fourth Amendment: Reasonable Expectations of Privacy in the Technological Age, 37 Am. Crim. L. Rev. 127, 137-38 (2000). The "Senior," a device . . . which looks like a large flashlight, is pointed at the suspect and, when switched on, vacuums in large quantities of air (and dust) from the area surrounding his or her body. It is then inserted into a larger machine, which heats the samples and through high-speed gas chromatography separates the chemical compounds contained therein, including those found in cocaine, heroin, and other narcotics. Id. (footnotes omitted).
347. Id. at 138 (footnotes omitted) (citing Peter Joseph Bober, The "Chemical Signature" of the Fourth Amendment: Gas Chromatography/Mass Spectrometry and the War on Drugs, 8 Seton Hall Const. L.J. 75 (1997)).
348. Id. at 138 (footnotes omitted) (citing Peter Joseph Bober, The "Chemical Signature" of the Fourth Amendment: Gas Chromatography/Mass Spectrometry and the War on Drugs, 8 Seton Hall Const. L.J. 75 (1997)).
349. See id. at 135, 138 (discussing analytical differences between drug-sniffing canines, FLIR, and Sentor).
350. See id. at 135 (discussing how courts have analogized FLIR to drug-sniffing canines).
351. See generally 2 Fishman & McKenna, supra note 24, §§ 29:1 to 29:7, at 29-3 to 29-14. Besides wiretapping and thermal imagers, the Court ruled in Smith v. Maryland, 442 U.S. 735 (1979), that the use of pen registers is not a search.
352. See Berkel & Rapaport, supra note 30, at 122 (noting that the New York Police Department was wiretapping telephones by 1895).
353. See supra Part I.A.2.
354. See 2 Fishman & McKenna, supra note 24, § 29:8, at 29-14.
355. United States v. Lee, 274 U.S. 559 (1927).
356. Id. at 563. Justice Brandeis, one of the Court's champions of privacy rights, wrote the opinion in Lee. See id. at 560.
357. On Lee v. United States, 343 U.S. 747, 754 (1952). See generally 2 Fishman & McKenna, supra note 24, § 29:8, at 29-14.
358. See Kyllo v. United States, 121 S. Ct. 2038, 2043, 2046 (2001).
359. See Independent Review of Carnivore, supra note 43, at 3-1 to 3-2.
360. Although the judiciary increasingly fashions injunctive, forward-looking remedies for controversies between less specific parties over events that have not yet happened, this type of prospective, general rulemaking is typically the province of the legislature.
361. See supra note 21; see also Office of Technology Assessment, U.S. Congress, Criminal Justice, New Technologies, and the Constitution 9 (May 1988). This report explains: Many new science-based technologies have similar effects which could degrade constitutional protections: •They increase the ability of government to observe, control, or intervene in the affairs of an individual singly, rather than with large groups or the public as a whole; this could erode the effectiveness of constitutional restraints based on common law formulations. •They allow investigation or surveillance at a distance, or out of sight of both the subject and concerned public interest groups; generally raising the level of surveillance and narrowing the expectation of privacy in society. Id.
362. See supra notes 44-47 and accompanying text.
363. After the controversy about Carnivore, a recent survey by the Pew Internet & American Life Project found that only one in five respondents had heard of Carnivore. See Kornblum, supra note 44.
364. See Diffie & Landau, supra note 20, at 153 ("[T]he very invisibility on which electronic surveillance depends for its effectiveness makes it evasive of oversight and readily adaptable to malign uses.").
365. See supra note 2 and accompanying text.
366. See Froomkin, supra note 48, at 1468-69 ("Databases multiply the effects of sensors. . . . Equally important, databases make it possible to create new information by combining existing data in new and interesting ways."); see also id. at 1477 ("Cameras are also an example of how technologies can interact with each other to multiply privacy-destroying effects. . . . In the near future, however, human observers will become much less important as the task of analyzing still photos and videos will be mechanized."). As one commentator noted about the phenomenon of these synergies: While surveillance and information technologies each create privacy concerns in their own right, recent technological advances have blurred the distinction between these two formerly separate categories. Surveillance technology now can generate personal information, while personal information can be used for surveillance-like purposes. Merging these two fields of technology heightens privacy concerns beyond the point that either category invokes separately. Thomas B. Kearns, Technology and the Right to Privacy: The Convergence of Surveillance and Information Privacy Concerns, 7 Wm. & Mary Bill Rts. J. 975, 995 (1999) (emphasis added).
367. See Froomkin, supra note 48, at 1482-83 ("The NSA recently received a patent on a computerized procedure that produces a topical summary of a conversation using a 'tree-word-list' to score the text. The patent describes a 'preprocessing' phase that removes 'stutter phrases' from a transcript. Then, a computer automatically assigns a label, or topic description, to the text. The method promises to allow computerized sorting and retrieval of transcripts and other documents based upon their meaning, not just keywords." (footnotes omitted)).
368. See Diffie & Landau, supra note 20, at 193-94.
369. See id.
370. Cf. People v. Kramer, 706 N.E.2d 731, 734 (N.Y. 1998) ("The technology moves faster than the law and it is important to law enforcement authorities, but it cannot be allowed to outpace the array of checks and balances and protections affecting these privacy intrusions, important to individuals and society at large."). Despite this observation about technology and the law, the New York Court of Appeals in Kramer went on to soften a rule the court had devised five years earlier for ensuring the appropriate legal use of pen-register devices that also could be modified to intercept telephone conversations. See infra notes 324-327 and accompanying text.
371. See supra notes 243-47 and accompanying text for a discussion of measures the Congress has taken to steadily loosen the rules on wiretapping since it first enacted Title III in 1968. Similarly, the courts have identified several circumstances, such as the search or random drug-testing of students by school administrators, where the requirements imposed for conducting a search are less stringent. See Buffaloe, supra note 142, at 533-42 (discussing cases of administrative or special-needs searches, where the Supreme Court has dispensed with the requirement that a search be based on probable cause). One commentator recently described seven ways that Title III and the ECPA's "balanced legislative scheme have been watered down by Congress itself and by the judiciary:" 1) the four-fold expansion of crimes for which wiretaps can be used, 2) the steady increase in authorizations and the almost non-existent instance in which a wiretap request has been denied, 3) the steady increase in the average length of a wiretap and the number of calls intercepted (both nearly doubling from 1980 to 1996), 4) the erosion of the requirement that other techniques first be exhausted, 5) the lack of enforcement of the requirement that the surveillance be minimized, 6) the low rate of acceptance of motions by defendants to suppress, 7) the 100% approval for wiretaps under FISA and the increasing reliance by law enforcement on FISA for criminal matters due to its "more flexible" standards. See James X. Dempsey, Communications Privacy in the Digital Age: Revitalizing the Federal Wiretap Laws to Enhance Privacy, 8 Alb. L.J. Sci. & Tech. 65, 75-78 (1997). These trends illustrate how wiretapping is no longer perceived as an extraordinary technique to be used in limited situations and under stringent constraints - as it was when Title III was enacted in 1968. See id.
372. As Justice Scalia noted in Kyllo, the thermal imager at issue in that case was a relatively rudimentary version of the technology. See supra note 77 and accompanying text. Had the minority garnered one more vote - i.e., so that the use of a thermal imager on a house would not have constituted a search - it seems likely that law-enforcement agents would have interpreted the decision as the green light to use the more sophisticated version of thermal imagers.
373. Independent Review of Carnivore, supra note 43, at ix.
374. See supra notes 203-05 and accompanying text for a discussion of the Supreme Court's ruling in Smith v. Maryland, a few years after Burger and Katz, that the use of pen registers does not implicate the Fourth Amendment because a person does not have a subjective expectation of privacy in the telephone number he or she dials.
375. According to FBI policy, an operator must adhere to the stricter requirements of Title III of FISA when using "full" mode and must follow the less stringent procedures of 18 U.S.C. §§ 3121-3124 when using "pen" mode. See Independent Review of Carnivore, supra note 43, at 3-1 to 3-5.
376. See id. at xi; see also id. at xiv (recommending "separate versions of Carnivore for pen register and full content collection").
377. See id. at ix ("All users are logged in as 'administrator' and no audit trail of actions is maintained."); see also id. at xiii ("IITRI did not find adequate provisions (e.g., audit trails) for establishing individual accountability for actions taken during use of Carnivore.").
378. See id. at 3-6 ("Judicial involvement is pervasive, and minimizes the risk that electronic surveillance will be unnecessary, overbroad, or too lengthy."). The report also cites internal checks developed by the FBI (such as "intensive training for personnel") and oversight by Congress as additional assurances of proper usage. See id.
379. Furthermore, the report noted that "the advertised functionality provides ample capability to perform unauthorized surveillance" - such that the contractor did not evaluate whether there were any additional capabilities hidden in the source code. See id. at xi.
380. See People v. Kramer, 706 N.E.2d 731, 733 (N.Y. 1998) ("The pen register devices . . . had the capacity to intercept and record either digital or aural transmissions, depending on whether they were set for 'audio off or 'audio on.' The switch from one mode to the other could be accomplished by a technician adjusting a switch . . . ."); People v. Bialostok, 610 N.E.2d 374, 378 (N.Y. 1993) (holding that it was improper for the police to install devices that were allegedly used only as pen registers, for which no warrant was required, on the targets' telephones and that were later converted to "listening devices" with a few simple adjustments).
381. See Bialostok, 610 N.E.2d at 378 (holding that pen registers that could be modified to monitor telephone conversations required a warrant based on probable cause under N.Y. law and that evidence gathered with a modifiable pen
382. Bialostok, 610 N.E.2d at 377-78 (internal citations and alterations omitted).
383. Kramer, 706 N.E.2d at 737.
384. For example, in Katz v. United States, 389 U.S. 347 (1967), the law-enforcement officers' surveillance tapes were excluded as violative of the Fourth Amendment even though they apparently took all diligent precautions short of obtaining a search warrant. Id. at 354; see Stephen Saltzburg, National Security and the Fourth and Fifth Amendments, in John Norton Moore et al., National Security Law 1001, 1003 (1990) ("Katz . . . illustrates the preference for a warrant even where executive officials conducted themselves otherwise reasonably without judicial supervision."). A Special Committee of the American Bar Association that assessed the validity of this perception that the exclusionary rule "seriously handicaps law enforcement" concluded that: [T]he prosecutors and police the Committee interviewed . . . do not believe that the Fourth Amendment rights or their protection via the exclusionary rule are a significant impediment to crime control. The exclusionary rule is applied to only a relatively small percentage of arrests and searches made by the police. A number of observers, including police officials, also report that the demands of the exclusionary rule and the resulting police training on Fourth Amendment requirements have promoted professionalism in police departments across this country. Thus, the exclusionary rule appears to be providing a significant safeguard of Fourth Amendment protections for individuals at modest cost in terms of either crime control or effective prosecution. Special Committee on Criminal Justice in a Free Society, ABA, Criminal Justice in Crisis 11 (1988).
385. See CRS, Constitution of the United States, supra note 147, at 1257; Joel Cohen & Claude Szyfer, Private Taping of Conversations: What the Law Says, N.Y. L.J., May 31, 2001, at 1 ("[P]rosecutions for illegal eavesdropping are extremely rare nationwide . . . ."). The case of Master v. FBI, 926 F. Supp. 193 (D. D.C. 1996), illustrates the difficulty of pursuing either criminal or civil sanctions against a law enforcement agency suspected of illegal wiretapping. The plaintiffs, suspecting that members of the Cleveland police had conducted illegal wiretaps on them, sought help from the FBI to investigate. Id. at 194-95. After being told by the FBI on several occasions and at several levels that the claim was without merit, Master filed a request pursuant to the Freedom of Information Act. Id. at 195. When the FBI withheld from the plaintiffs certain documents that it indicated were responsive to the request, the plaintiffs sought an in camera review of these records. Id. The court rejected this request and dismissed the plaintiffs' case. Id.
386. See CRS, Constitution of the United States, supra note 147, at 1264-65 ("For as long as we have had the exclusionary rule, critics have attacked it, challenged its premises, disputed its morality."). As Professor Amar wrote: The exclusionary rule renders the Fourth Amendment contemptible in the eyes of judges and citizens. Judges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated. In the popular mind, the Amendment has lost its luster and become associated with grinning criminals getting off on crummy technicalities. Amar, supra note 142, at 799.
387. See CRS, Constitution of the United States, supra note 147, at 1267; see, e.g., United States v. Hall, No. 99-6056, 2001 U.S. App. LEXIS 8836 (6th Cir. May 2, 2001). The good-faith exception to the exclusionary rule derives from United States v. Leon, 468 U.S. 897, 923 (1984), where the Supreme Court permitted the admission of evidence obtained by the police "through objective good faith reliance on a facially valid warrant that is later found to lack probable cause." Carmen R. Parcelli, The Exclusionary Rule, 88 Geo. L.J. 1043, 1046 (2000). "The Court concluded that a 'good faith' exception to the exclusionary rule was proper because under such circumstances suppression would not advance the exclusionary rule's goal of deterring official misconduct." Id.
388. See Costello v. United States, 365 U.S. 265, 278-80 (1961) (holding that defendant's admission of past bootlegging was admissible when questioner got information both from illegal wiretap and grand jury transcript); see, e.g., Hoover v. Leonardo, 91-CV-1211, 1996 U.S. Dist. LEXIS 22549 (E.D.N.Y. June 17, 1996). See generally Parcelli, supra note 331, at 1053 (gathering cases on development of the independent-source doctrine). In the context of powerful clandestine surveillance, this exception seems poised to swallow the rule: How can the assertion by a police officer that an important piece of evidence was discovered independently and properly rather than from an illegal wiretap ever be tested or contested? See Buffaloe, supra note 142, at 530-31 ("[T]he newly created 'special needs' exception to the warrant and probable cause requirements . . . is so broad and far-reaching that it is poised to turn the warrant preference rule on its head."); cf. Melvyn Zarr, The Bill of Rights and the Police 33-34 (2d ed. 1980) ("This phenomenon [of police lying] is well known among members of the Bar and the police. In a ludicrously high number of cases, the police have overcome a defendant's motion to suppress illegally seized narcotics by testifying that the defendant, when approached by the police officers, reached into his pocket, dropped the narcotics on the ground and attempted to flee."); James Sterngold, Police Corruption Inquiry Expands in Los Angeles, N.Y. Times, Feb. 11, 2000, at A16 (revealing that "perhaps 100 cases might have been tainted by planted evidence, false testimony or other police abuses").
389. See Costello v. United States, 365 U.S. 265, 278-80 (1961) (holding that defendant's admission of past bootlegging was admissible when questioner got information both from illegal wiretap and grand jury transcript); see, e.g., Hoover v. Leonardo, 91-CV-1211, 1996 U.S. Dist. LEXIS 22549 (E.D.N.Y. June 17, 1996). See generally Parcelli, supra note 331, at 1053 (gathering cases on development of the independent-source doctrine). In the context of powerful clandestine surveillance, this exception seems poised to swallow the rule: How can the assertion by a police officer that an important piece of evidence was discovered independently and properly rather than from an illegal wiretap ever be tested or contested? See Buffaloe, supra note 142, at 530-31 ("[T]he newly created 'special needs' exception to the warrant and probable cause requirements . . . is so broad and far-reaching that it is poised to turn the warrant preference rule on its head."); cf. Melvyn Zarr, The Bill of Rights and the Police 33-34 (2d ed. 1980) ("This phenomenon [of police lying] is well known among members of the Bar and the police. In a ludicrously high number of cases, the police have overcome a defendant's motion to suppress illegally seized narcotics by testifying that the defendant, when approached by the police officers, reached into his pocket, dropped the narcotics on the ground and attempted to flee."); James Sterngold, Police Corruption Inquiry Expands in Los Angeles, N.Y. Times, Feb. 11, 2000, at A16 (revealing that "perhaps 100 cases might have been tainted by planted evidence, false testimony or other police abuses").
390. See Costello v. United States, 365 U.S. 265, 278-80 (1961) (holding that defendant's admission of past bootlegging was admissible when questioner got information both from illegal wiretap and grand jury transcript); see, e.g., Hoover v. Leonardo, 91-CV-1211, 1996 U.S. Dist. LEXIS 22549 (E.D.N.Y. June 17, 1996). See generally Parcelli, supra note 331, at 1053 (gathering cases on development of the independent-source doctrine). In the context of powerful clandestine surveillance, this exception seems poised to swallow the rule: How can the assertion by a police officer that an important piece of evidence was discovered independently and properly rather than from an illegal wiretap ever be tested or contested? See Buffaloe, supra note 142, at 530-31 ("[T]he newly created 'special needs' exception to the warrant and probable cause requirements . . . is so broad and far-reaching that it is poised to turn the warrant preference rule on its head."); cf. Melvyn Zarr, The Bill of Rights and the Police 33-34 (2d ed. 1980) ("This phenomenon [of police lying] is well known among members of the Bar and the police. In a ludicrously high number of cases, the police have overcome a defendant's motion to suppress illegally seized narcotics by testifying that the defendant, when approached by the police officers, reached into his pocket, dropped the narcotics on the ground and attempted to flee."); James Sterngold, Police Corruption Inquiry Expands in Los Angeles, N.Y. Times, Feb. 11, 2000, at A16 (revealing that "perhaps 100 cases might have been tainted by planted evidence, false testimony or other police abuses").
391. See, e.g., United States v. Squillacote, 221 F.3d 542, 554-57 (4th Cir. 2000) (holding that FBI agents remaining in premises overnight for six nights even though warrant authorized a search from 6 a.m. to 10 p.m. did not violate warrant and even if it did exclusion would be inappropriate).
392. Parcelli, supra note 331, at 1055.
393. See supra note 242 (discussing the law-enforcement officer's perspective on the process and pitfalls of applying for an electronic wiretap). From 1989 through 1999, federal and state law enforcement officials sought authorization for 11,615 wiretaps, of which three were denied. See Wiretap Report 1999, supra note 26, at 32 tbl.7.
394. Saltzburg, supra note 328, at 1028.
395. See Diffie & Landau, supra note 20, at 157-65; Thomas I. Sheridan III, Electronic Intelligence Gathering and the Omnibus Crime Control and Safe Streets Act of 1968, 44 Fordham L. Rev. 331 (1975) (discussing dichotomy between criminal evidence and intelligence and applicability of Title III); cf. Independent Review of Carnivore, supra note 43, at 3-7 ("Note, however, that the availability of an exclusionary rule does not offer direct protection for those not suspected of criminal or foreign intelligence activity who may be caught within the web of surveillance.").
396. See Diffie & Landau, supra note 20, at 157-65; Thomas I. Sheridan III, Electronic Intelligence Gathering and the Omnibus Crime Control and Safe Streets Act of 1968, 44 Fordham L. Rev. 331 (1975) (discussing dichotomy between criminal evidence and intelligence and applicability of Title III); cf. Independent Review of Carnivore, supra note 43, at 3-7 ("Note, however, that the availability of an exclusionary rule does not offer direct protection for those not suspected of criminal or foreign intelligence activity who may be caught within the web of surveillance.").
397. See Diffie & Landau, supra note 20, at 157-65; Thomas I. Sheridan III, Electronic Intelligence Gathering and the Omnibus Crime Control and Safe Streets Act of 1968, 44 Fordham L. Rev. 331 (1975) (discussing dichotomy between criminal evidence and intelligence and applicability of Title III); cf. Independent Review of Carnivore, supra note 43, at 3-7 ("Note, however, that the availability of an exclusionary rule does not offer direct protection for those not suspected of criminal or foreign intelligence activity who may be caught within the web of surveillance.").
398. Cf. infra note 501.
399. Wiretap Report 1999, supra note 26, at 7.
400. See Froomkin, supra note 48, at 1484. The FBI had originally sought more capacity (one percent of the total capacity at any given time) but modified its request after arousing controversy. See id.
401. In 1973, Justice Douglas stated that "we live in a regime where the 'dirty business' of wiretapping runs rampant" and described the "commonplace" practice of wiretapping as a "disease." Heutsche v. United States, 414 U.S. 898, 898-99 (Douglas, J., dissenting); see also Dash et al., supra note 182, at 35-285 (describing electronic-surveillance practices by municipal police departments in the U.S. through the mid-1950s); supra notes 135 & 193 and accompanying text. The history of custodial interrogations is also instructive on this theme: Evidence over many years that police officers interrogating suspects in their custody were compelling confessions (often false) eventually led the Court in 1966 to take a very close look at the constitutionality of these custodial interrogations. In the landmark decision Miranda v. Arizona, Chief Justice Warren writing for the Court carefully described the possibility of abuse of these inherently coercive interrogations. See 384 U.S. 436, 445-58 (1966). Cases since Miranda underscore the need for continued vigilance. In Cooper v. Dupnik, an innocent suspect was intentionally deprived of his right to counsel and his right to remain silent by police officers who, under pressure to catch a notorious rapist, resorted to terror to elicit a confession. See 963 F.2d 1220, 1225-26 (9th Cir. 1992). Officers described "creating the illusion of hopelessness," mocking the suspect's rights, and lying about evidence to "create stress." Id. at 1225. The Ninth Circuit observed, "[t]his case is an example of officials who deliberately choose to ignore the law and the Constitution in favor of their own methods. For victims caught in their snare, the Constitution of the United States becomes a useless piece of paper." Id. at 1252. Cooper also illustrates how difficult it is to discipline police officers for manifestly abusive investigative tactics, given the occasional tendency of courts to acquiesce in such misconduct. The Ninth Circuit chided the lower court for its analysis of a suspect's legal rights and its conclusion that the police's behavior did not shock the conscience. See id.
402. Amar, supra note 142, at 818; see also United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926) (Hand, J.) (quoted in Taylor, supra note 139, at 65); cf. 1 Fishman & McKenna, supra note 24, § 1:2, at 1-3 ("To many observers, however, surreptitious monitoring of private conversations conjures images of Nazi Germany, the Soviet Union, and fictional equivalents. The Watergate scandal of the 1970s should suffice to destroy any illusions that the United States is somehow inherently immune from the misuse of these techniques.").
403. Amar, supra note 142, at 818; see also United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926) (Hand, J.) (quoted in Taylor, supra note 139, at 65); cf. 1 Fishman & McKenna, supra note 24, § 1:2, at 1-3 ("To many observers, however, surreptitious monitoring of private conversations conjures images of Nazi Germany, the Soviet Union, and fictional equivalents. The Watergate scandal of the 1970s should suffice to destroy any illusions that the United States is somehow inherently immune from the misuse of these techniques.").
404. Amar, supra note 142, at 818; see also United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926) (Hand, J.) (quoted in Taylor, supra note 139, at 65); cf. 1 Fishman & McKenna, supra note 24, § 1:2, at 1-3 ("To many observers, however, surreptitious monitoring of private conversations conjures images of Nazi Germany, the Soviet Union, and fictional equivalents. The Watergate scandal of the 1970s should suffice to destroy any illusions that the United States is somehow inherently immune from the misuse of these techniques.").
405. See United States v. United States District Court (Keith), 407 U.S. 297, 299 (1972) ("Successive Presidents for more than one-quarter of a century have authorized [electronic] surveillance [in internal security matters] in varying degrees, without guidance from the Congress or a definitive decision of this Court."); supra note 135 and accompanying text.
406. Diffie & Landau, supra note 20, at 148.
407. Dorian D. Greene, Ethical Dilemmas Confronting Intelligence Agency Counsel, 2 Tulsa J. Comp. & Int'l L. 91, 91 (1994).
408. Id.
409. Id. at 91-92 (quoting Richard Willard, Attorney General William French Smith's Counsel for Intelligence Policy).
410. Id. at 91 ("Ignoring counsel's advice and thereby, circumventing the entire Office of General Counsel, is eminently possible in such an organized, tightly compartmentalized society."); see also Diffie & Landau, supra note 20, at 3 (stating that police and intelligence agencies that conduct wiretapping "regard their activities as a natural prerogative of the state, necessary for an orderly society"); Duncan Campbell, COMINT, privacy and human rights (Paper 3, May 5, 2001) http://www.heise.de/tp/deutsch/special/ech/7748/1.html ("Sigint [signals intelligence], which comprehensively attacks the privacy of such communications, remains - unlike domestic wiretapping in most countries - unregulated and beyond the reach of most national jurisdictions.") (on file with the Fordham Law Review).
411. See Amsterdam, supra note 290, at 360, 448 n.138 ("The substantive fourth amendment rules are enforceable, to some extent, by civil and criminal actions against officers who violate them. But such actions are seldom maintained, nor are they, as a practical matter, maintainable [due to 'assorted legal difficulties . . . and a familiar litany of practical impediments']; and the primary instrument for enforcing the fourth amendment has long been the exclusionary rule . . . .").
412. See supra note 329 (discussing Master v. FBI, 926 F. Supp. 193 (D. D.C. 1996)); see also Saltzburg, supra note 328, at 1028. Intuitively, it will become increasingly difficult for citizens to know when, where, and how the government is tracking their movements and words as the modern means for surveillance become increasingly smaller and more powerful. See supra note 305 and accompanying text.
413. See Saltzburg, supra note 328, at 1029.
414. Id. at 1028-29.
415. See CRS, Constitution of the United States, supra note 147, at 1258.
416. Cf. Amar, supra note 142, at 818 ("'Reasonableness' is largely a matter of common sense, and the jury represents the common sense of common people."). Other commentators have stated: We believe that the term "reasonable" in the Fourth Amendment is infused with meaning by a societal convention about the proper scope of the government's power to conduct searches and seizures, or, turning the concept around, a convention about the scope of privacy against these governmental intrusions. We will call this the "Fourth Amendment privacy convention." To let judges decide what "reasonable" means is implicitly to conclude that judges are better suited to perceive this convention than juries. This proposition is not self-evident. George C. Thomas III & Barry S. Pollack, Saving Rights from a Remedy: A Societal View of the Fourth Amendment, 73 B.U. L. Rev. 147, 155 (1993).
417. Cf. Amar, supra note 142, at 818 ("'Reasonableness' is largely a matter of common sense, and the jury represents the common sense of common people."). Other commentators have stated: We believe that the term "reasonable" in the Fourth Amendment is infused with meaning by a societal convention about the proper scope of the government's power to conduct searches and seizures, or, turning the concept around, a convention about the scope of privacy against these governmental intrusions. We will call this the "Fourth Amendment privacy convention." To let judges decide what "reasonable" means is implicitly to conclude that judges are better suited to perceive this convention than juries. This proposition is not self-evident. George C. Thomas III & Barry S. Pollack, Saving Rights from a Remedy: A Societal View of the Fourth Amendment, 73 B.U. L. Rev. 147, 155 (1993).
418. See Amar, supra note 142, at 771-72. Professor Amar notes that juries continued to play this role through the nineteenth century as well. See id. at 818 n.228.
419. See supra note 286 and accompanying text. Three rules in particular bear out that the judiciary has permitted this increase in governmental surveillance power: First, the courts have weakened the common-law requirement that the subject of a search be given notice of the search at the time of or shortly afterwards. See 1 Carr, supra note 25, § 2.5(c)(4), at 2-33 to 2-38 (describing how Congress and the courts have dulled the notice component of searches and seizures). In its Berger decision, the Supreme Court "acknowledged the obvious fact that pre-surveillance notice would eliminate the likelihood of success." Id. § 2.5(c)(4), at 2-33. The wiretap law Congress enacted shortly after Berger permits the target to be notified within 90 days, see 18 U.S.C. 2518(8)(d) (1994), and "courts have generally treated the ninety-day maximum as a minimum requirement." 1 Carr, supra note 25, § 2.5(c)(4)(B), at 2-35. Further, what the government is required to notify the target of under Title III is "little more than a notification of the fact that surveillance occurred" - in contrast to the detailed written inventory of all items seized for non-surveillance searches and seizures. Id. § 2.5(c)(4)(C), at 2-36 to 2-37. Second, the courts have greatly expanded the use of warrants - making judge-issued warrants the measure of the reasonableness of a search or seizure and expanding warrants to allow the gathering of "mere evidence" - which enables law-enforcement officers to collect more information while increasing their immunity from civil or criminal sanctions for improper searches and seizures. See supra notes 350-353 and accompanying text. Third, the exclusionary rule, which is the primary mechanism for compliance with the Fourth Amendment, is limited in scope - i.e., its effect exists only when the evidence or information improperly gathered will be used in court and courts have carved out numerous exceptions - and it is weakly applied. See supra notes 330-337 and accompanying text.
420. See Rosen, The Unwanted Gaze, supra note 178, at 62-63 ("It's not surprising that Supreme Court justices, who are secluded in a marble palace and have spent most of their careers in the cosseted solitude of lower courts and universities, aren't terribly good at predicting how much privacy ordinary Americans expect in the workplace.").
421. See Amsterdam, supra note 290, at 384. The Court subsequently addressed Professor Amsterdam's hypothetical in a footnote to Smith v. Maryland, 442 U.S. 735 (1979). Justice Blackmun explained: Situations can be imagined, of course, in which Katz' two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation's traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual's subjective expectations had been "conditioned" by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a "legitimate expectation of privacy" existed in such cases, a normative inquiry would be proper. Id. at 740 n.5.
422. Kyllo v. United States, 121 S. Ct. 2038, 2043 (2001); see also Julie, supra note 291, at 132 ("Another common criticism of Katz's reasonable expectation of privacy test is that it is circular; as the argument goes, the Supreme Court protects only those expectations that are reasonable, while the only expectations that are reasonable are those which the Supreme Court is willing to protect.").
423. Katz, supra note 286, at 549.
424. Id. at 551.
425. See Rosen, The Unwanted Gaze, supra note 178, at 34 ("Judges have a natural tendency to favor the state when balancing the interests of prosecutors against the interests of criminals, and any society that ties its privacy to the rights of the accused is a society in which the legal protections for privacy will quickly evaporate.").
426. See id. at 63.
427. Thomas & Pollack, supra note 354, at 163; see also id. at 149 ("We also argue that the best way to determine the nature of the relevant convention is to involve society in the inquiry.").
428. See, e.g., Amar, supra note 142, at 759 ("Fourth Amendment case law is a sinking ocean liner - rudderless and badly off course - yet most scholarship contents itself with rearranging the deck chairs."), 761-800 (stating the substance of the critique); Amsterdam, supra note 290, at 349 (commenting that "[f]or clarity and consistency, the law of the fourth amendment is not the Supreme Court's most successful product" and noting similar pronouncements by other commentators); Katz, supra note 286, at 549 ("[T]he Court has permitted police surveillance powers to grow almost unchecked to their present epic proportions. Today in America, the police may target any individual for scrutiny - for good reason, for bad reason or for no reason at all. They may use any number of sophisticated surveillance techniques without judicial authorization or review."); cf. Saltzburg, supra note 328, at 1028-29.
429. See, e.g., Amar, supra note 142, at 759 ("Fourth Amendment case law is a sinking ocean liner - rudderless and badly off course - yet most scholarship contents itself with rearranging the deck chairs."), 761-800 (stating the substance of the critique); Amsterdam, supra note 290, at 349 (commenting that "[f]or clarity and consistency, the law of the fourth amendment is not the Supreme Court's most successful product" and noting similar pronouncements by other commentators); Katz, supra note 286, at 549 ("[T]he Court has permitted police surveillance powers to grow almost unchecked to their present epic proportions. Today in America, the police may target any individual for scrutiny - for good reason, for bad reason or for no reason at all. They may use any number of sophisticated surveillance techniques without judicial authorization or review."); cf. Saltzburg, supra note 328, at 1028-29.
430. See, e.g., Amar, supra note 142, at 759 ("Fourth Amendment case law is a sinking ocean liner - rudderless and badly off course - yet most scholarship contents itself with rearranging the deck chairs."), 761-800 (stating the substance of the critique); Amsterdam, supra note 290, at 349 (commenting that "[f]or clarity and consistency, the law of the fourth amendment is not the Supreme Court's most successful product" and noting similar pronouncements by other commentators); Katz, supra note 286, at 549 ("[T]he Court has permitted police surveillance powers to grow almost unchecked to their present epic proportions. Today in America, the police may target any individual for scrutiny - for good reason, for bad reason or for no reason at all. They may use any number of sophisticated surveillance techniques without judicial authorization or review."); cf. Saltzburg, supra note 328, at 1028-29.
431. See, e.g., Amar, supra note 142, at 759 ("Fourth Amendment case law is a sinking ocean liner - rudderless and badly off course - yet most scholarship contents itself with rearranging the deck chairs."), 761-800 (stating the substance of the critique); Amsterdam, supra note 290, at 349 (commenting that "[f]or clarity and consistency, the law of the fourth amendment is not the Supreme Court's most successful product" and noting similar pronouncements by other commentators); Katz, supra note 286, at 549 ("[T]he Court has permitted police surveillance powers to grow almost unchecked to their present epic proportions. Today in America, the police may target any individual for scrutiny - for good reason, for bad reason or for no reason at all. They may use any number of sophisticated surveillance techniques without judicial authorization or review."); cf. Saltzburg, supra note 328, at 1028-29.
432. See Amsterdam, supra note 290, at 349 (discussing Supreme Court's own criticism of its Fourth Amendment jurisprudence); see, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 483 (1971) ("[I]t would be nonsense to pretend that our decision today reduces Fourth Amendment law to complete order and harmony.").
433. Amar, supra note 142, at 757-58.
434. As stated by Professor Amsterdam, "The Bill of Rights in general and the fourth amendment in particular are profoundly anti-government documents. They deny to government . . . desired means, efficient means, and means that must inevitably appear . . . to be the absolutely necessary means, for government to obtain legitimate and laudable objectives." Amsterdam, supra note 290, at 353. According to another commentator, "The objects sought by the American people in their aspirations for the preservation of their liberties are well stated in the Preamble to the Constitution. But while the scope of these objectives recognizes the unlimited power of the people, the Constitution itself imposes severe limitations upon the government." Sol Bloom, United States Sesquicentennial Commission, The Story of the Constitution 33 (1937). Professor Erwin Chemerinsky has stated that "[a] basic principle of American government is that Congress may act only if there is express or implied authority to act in the Constitution." See Erwin Chemerinsky, Constitutional Law: Principles and Policies 166 (1997). Professor Chemerinsky then notes that states, unlike the federal government, have police powers - that is, "state and local governments [can] adopt any law that is not prohibited by the Constitution." Id. Professor Katz has argued that the Supreme Court's current approach - namely, "us[ing] the privacy test in a way that favors the exercise of unreviewable government power" - "runs counter to the other great theme of the fourth amendment: that ours is a system of limited government." Katz, supra note 286, at 554 (emphasis added).
435. Chemerinsky, Constitutional Law, supra note 368, at 3. Professor Chemerinsky notes, "The implication [of vesting legislative power in Congress] is that Congress can act only if there is clear authority, with all other governance left to the states. But this is not made explicit in the text. Indeed, it was probably this lack of clarity that inspired the Tenth Amendment . . . ." Id.
436. Cf. Bloom, supra note 368, at 34 ("But as a further precaution the people reserved to the States and to themselves all powers that were not entrusted to the national government. . . .").
437. See Chemerinsky, Constitutional Law, supra note 368, at 9-10; CRS, Constitution of the United States, supra note 147, at XX ("The convention [in Philadelphia in 1787] had been called to revise the Articles of Confederation. Instead, it reported to the Continental Congress a new Constitution.").
438. See Gordon S. Wood, The Creation of the American Republic 1776-1787, at 559 (1969).
439. See Robert W. Scheef, Note, "Public Citizens" and the Constitution: Bridging the Gap Between Popular Sovereignty and Original Intent, 69 Fordham L. Rev. 2201, 2223 (2001) ("The Constitution controls faction in order to prevent a recurrence of the majoritarian tyrannies of the Critical Period [i.e., from the late 1770s through the 1780s].").
440. See Chemerinsky, Constitutional Law, supra note 368, at 4; see also Laurence H. Tribe, American Constitutional Law § 15-3, at 1308 (2d ed. 1988) ("Human beings are of course the intended beneficiaries of our constitutional scheme.").
441. See Tribe, supra note 374, at 18-22.
442. See Wood, supra note 372, at 536-47 (discussing the disagreements between the federalists and the anti-federalists over the new constitution).
443. See James Herberg, Ninth Amendment, in Constitutional Amendments: 1789 to the Present 205 (Kris E. Palmer ed., 2000).
444. See Sol Wachtler, Judging the Ninth Amendment, 59 Fordham L. Rev. 597, 600 (1991).
445. The Federalist No. 84 (Alexander Hamilton). See generally Wachtler, supra note 378, at 602 ("Like [James] Wilson, Hamilton argued that a bill of rights was not only unnecessary to secure fundamental rights, but also potentially dangerous.").
446. See Herberg, supra note 377, at 205 ("Since the Constitution gave no authority to the federal government to take away individual liberties, it stood to reason that the federal government could do no such thing.").
447. See Ely, supra note 13, at 34-36 (describing James Madison's view of a Bill of Rights); Herberg, supra note 377, at 205; Wachtler, supra note 379, at 600.
448. See Ely, supra note 13, at 34-36 (describing James Madison's view of a Bill of Rights); Herberg, supra note 377, at 205; Wachtler, supra note 379, at 600.
449. See Ely, supra note 13, at 34-36 (describing James Madison's view of a Bill of Rights); Herberg, supra note 377, at 205; Wachtler, supra note 379, at 600.
450. See infra note 385.
451. See infra note 395.
452. See Tribe, supra note 374, § 11-3, at 774-75.
453. U.S. Const, amend. IX.
454. See CRS, Constitution of the United States, supra note 147, at 1504; Wachtler, supra note 378, at 597.
455. Griswold v. Connecticut, 381 U.S. 479 (1965). Justice Douglas concluded that the right to marital privacy could be found in the "penumbras" and "emanations" of other fundamental rights. Id. at 483-84. Justice Goldberg in concurrence was bolder; he stated that the right to marital privacy could be located in the Ninth Amendment alone because the Ninth Amendment protected rights that were not specifically enumerated. Id. at 486-99 (Goldberg, J., concurring).
456. See CRS Constitution of the United States, supra note 157, at 1504; Wachtler, supra note 378, at 597; cf. Ely, supra note 13, at 2-3
457. See CRS Constitution of the United States, supra note 157, at 1504; Wachtler, supra note 378, at 597; cf. Ely, supra note 13, at 2-3
458. CRS, Constitution of the United States, supra note 147, at 1503-04; see also Tribe, supra note 374, § 11-3, at 774-75 (The Ninth Amendment "of least states a rule of construction pointing away from the reverse incorporation view . . . and at most provides a positive source of law for fundamental but unmentioned rights.").
459. See Ely, supra note 13, at 34-38
460. See id. at 34. But see id. at 34-38 for Professor Ely's refutation of this view.
461. See supra notes 368-84 and accompanying text. Indeed, one scholar, in his discussion of the early amendments to the Constitution, places far more emphasis on the importance of the Ninth and Tenth Amendment than on the individual liberties contained in the first eight amendments. See 2 George Ticknor Curtis, Constitutional History of the United States 153-54, 160-62 (1974).
462. Raoul Berger, The Ninth Amendment, 66 Cornell L. Rev. 1, 2-3 (1980) (characterizing the Ninth and Tenth Amendments as "complementary" and explaining that "the ninth deals with rights 'retained by the people,' the tenth with powers 'reserved' to the states or the people").
463. Cf. Chemerinsky, Constitutional Law, supra note 368, at 232 (describing how "the Court used the Tenth Amendment and federalism considerations as a rule of construction" in Gregory v. Ashcroft, 501 U.S. 452 (1991)).
464. U.S. Const, amend. X.
465. Chemerinsky, Constitutional Law, supra note 368, at 226.
466. See id. at 226-27, 231. Professor Chemerinsky quotes Justice Stevens in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 551 (1985), as stating "[t]he political process ensures that the laws that unduly burden the States will not be promulgated." Chemerinsky, Constitutional Law, supra note 368, at 231.
467. Chemerinsky, Constitutional Law, supra note 368, at 227.
468. See American Criminal Procedure: Cases and Commentary 26 (Stephen A. Saltzburg & Daniel J. Capra eds., 4th ed. 1992) (noting that the Fourth Amendment is an expression of a philosophy against intrusions by the British in colonial America).
469. See Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 37-42 (AMS Press 1986) (1937) (discussing the Licensing Act, Walpole's Excise Scheme, and the Cider Tax). Professor Lasson's treatise offers a thorough description of the long history leading up to the Fourth Amendment.
470. See id. at 42.
471. See id. at 43. As Professor Amar explained: We need only recall the facts of the 1763 English case, Wilkes v. Wood, whose plot and cast of characters were familiar to every schoolboy in America, and whose lessons the Fourth Amendment was undeniably designed to embody. Wilkes - and not the 1761 Boston writs of assistance controversy, which went almost unnoticed in debates over the federal Constitution and Bill of Rights - was the paradigm search and seizure case for Americans. Indeed, it was probably the most famous case in late eighteenth-century America, period. Amar, supra note 142, at 772 (footnotes omitted).
472. See Lasson, supra note 400, at 43.
473. See id. at 43-44.
474. See id. at 45; Amar, supra note 142, at 781.
475. See Amar, supra note 142, at 771-73. According to a recent survey, fifty-four percent of Americans favor enabling federal law enforcement to monitor email messages out of concern for Internet-related child pornography, terrorism, fraud, credit card theft, and hacking into government computers. See Kornblum, supra note 44. However, the survey's respondents also found a concomitant skepticism about government and a desire for privacy laws to protect against "government snooping." According to this study, which was conducted by the Pew Internet & American Life Project, "[t]rust in government to do the right thing most of the time sank to 31%, from 39% in 1997, 41% in 1988. Of all Americans, 62% want new privacy laws and protections from government snooping." Id.
476. See Amar, supra note 142, at 771-73. According to a recent survey, fifty-four percent of Americans favor enabling federal law enforcement to monitor email messages out of concern for Internet-related child pornography, terrorism, fraud, credit card theft, and hacking into government computers. See Kornblum, supra note 44. However, the survey's respondents also found a concomitant skepticism about government and a desire for privacy laws to protect against "government snooping." According to this study, which was conducted by the Pew Internet & American Life Project, "[t]rust in government to do the right thing most of the time sank to 31%, from 39% in 1997, 41% in 1988. Of all Americans, 62% want new privacy laws and protections from government snooping." Id.
477. According to Professor Taylor, several states created their own constitutions after gaining independence in which "the warrant is treated as an enemy not a friend." Taylor, supra note 139, at 41; see also Amar, supra note 142, at 774 ("In every state constitution prior to the federal Bill [of Rights], 'the warrant is treated as an enemy, not a friend.'" (quoting Taylor)).
478. See Taylor, supra note 139, at 23-24 (stating that the widely-held view, in which "the warrant [is] the touchstone of 'reasonableness'" - i.e., the two clauses of the Fourth Amendment are read conjunctively - stands "the fourth amendment on its head"); id. at 38-46 (discussing the original intent of the Fourth Amendment); Amar, supra note 142, at 762-63 (arguing that the Amendment's first "command" - that searches and seizures not be unreasonable - does not "require" the second-that warrants be based on probable cause and narrowly tailored).
479. See supra notes 142-46 and accompanying text.
480. See Amar, supra note 142, at 771 ("[J]uries, not judges, are the heroes of the Founders' Fourth Amendment story. Indeed, at times, the Founders viewed judges and certain judicial proceedings with suspicion . . . ."). Professor Amar further explained: Even when a judge issued a warrant, revolutionary Americans greeted the event with foreboding. Prior to the Revolution, American judges lacked the independence from the Crown that their British brothers had won after the Glorious Revolution. Sitting at the pleasure of the monarch, the King's judicial magistrates in America were at times hard to distinguish from His executive magistrates - especially when a single Crown lackey wore several hats, as often occurred. Nor did the foreboding disappear after the Revolution, when American judges won a measure of institutional independence from the executive branch. Even an Article III judge, after all, had been appointed by the President, looked to the President for possible promotion to a higher court, and drew his salary from the government payroll. What's more, such a judge was an official of the central government - perhaps not so imperial as his Crown-directed colonial predecessors, but suspicious nonetheless. Would the handful of elite federal judges truly be able to empathize with the concerns of ordinary folk? And a single bad apple could spoil the bunch; if even one federal judge was a lord or a lackey, executive officials shopping for easy warrants would know where to go. Far more trustworthy were twelve men, good and true, on a local jury, independent of the government, sympathetic to the legitimate concerns of fellow citizens, too numerous to be corrupted, and whose vigilance could not easily be evaded by governmental judge-shopping. Id. at 773 (footnotes omitted).
481. See id. at 771-72 ("The Framers did not exalt warrants, for a warrant was issued ex parte by a government official on the imperial payroll and had the purpose and effect of precluding any common law trespass suit the aggrieved target might try to bring before a local jury after the search or seizure occurred.").
482. As Justice Brandeis stated in his dissenting opinion in Olmstead: We have . . . held that general limitations on the powers of Government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modern conditions by regulations which a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Clauses guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world. Olmstead v. United States, 277 U.S. 438, 472 (1928) (Brandeis, J., dissenting) (emphasis added) (quotations and citations omitted).
483. See Amsterdam, supra note 290, at 388 ("[I]f [a police activity] is not labeled a 'search' or 'seizure,' it is subject to no significant restrictions of any kind. . . . [P]olice activities of any other sort may be as unreasonable as the police please to make them." (endnotes omitted)). Professor Amsterdam further explains: The question of what constitutes a covered "search" or "seizure" would and should be viewed with an appreciation that to exclude any particular police activity from coverage is essentially to exclude it from judicial control and from the command of reasonableness, whereas to include it is to do no more than say that it must be conducted in a reasonable manner. With the question put in this fashion the answer should seldom be delivered against coverage. Id. at 393 (endnote omitted).
484. See infra text accompanying note 467; see also McKnight, supra note 83, at 1264 (proposing the Court re-adopt a rule that the use of thermal imagers is presumptively unreasonable and thereby shift the burden to the government to prove the reasonableness of its actions). The author reasons that: The Fourth Amendment protects against "unreasonable searches and seizures." Thus, the question to be asked is whether the government activity - the search or seizure - is reasonable. However, the second prong of Justice Harlan's test [concurring in Katz v. United States, 389 U.S. 347 (1967)] reverses the focus from whether the government's action is reasonable to whether the citizen's expectation of privacy is reasonable. In effect, this shifts the burden of proof from the government to the citizen to prove "reasonableness." Now, instead of the government having to justify its actions, the citizen is forced to prove that his expectation is one society recognizes as reasonable. Id. at 1262. The author proposes that the Court re-adopt a rule whereby the government bears the burden of proving the reasonableness of its actions. Id. at 1262, 1264. He suggests that the court do this by "declar[ing] such warrantless searches presumptively unreasonable." Id. at 1264.
485. Criticizing the exclusionary rule as the device for deterring the government from violating citizens' rights, Professor Amar explained: The criminal defendant is a kind of private attorney general. But the worst kind. He is self-selected and self-serving. He is often unrepresentative of the larger class of law-abiding citizens, and his interests regularly conflict with theirs. Indeed, he is often despised by the public, the class he implicitly is supposed to represent. He will litigate on the worst set of facts, heedless that the result will be a bad precedent for the Fourth Amendment generally. He cares only about the case at hand - his case -and has no long view. He is not a sophisticated repeat player. He rarely hires the best lawyer. He cares only about exclusion - and can get only exclusion - even if other remedies (damages or injunctions) would better prevent future violations. . . . He is, in short, an awkward champion of the Fourth Amendment. Amar, supra note 142, at 796; see also CRS, Constitution of the United States, supra note 147, at 1258 ("[O]n the practical side, persons subjected to illegal arrests and searches and seizures are often disreputable persons toward whom juries are unsympathetic . . . ."); Taylor, supra note 139, at 65 ("[A]s Learned Hand reminded us in Prohibition times: '. . . What seems fair enough against a squalid huckster of bad liquor may take on a very different face, if used by a government determined to suppress political opposition under the guise of sedition.'" (endnote omitted)); Katz, supra note 286, at 550 ("The court's answer to [the criminal defendant's] plea [for improperly obtained evidence] will set the level of privacy and freedom for the whole community. Suppression of illegally obtained evidence protects us all, not just those suspected of criminal activity.").
486. See supra notes 2 and accompanying text.
487. Jack Carey, ACLU Decries Super Bowl Surveillance: Fans, Workers Secretly Taped in High-tech Security Effort, USA Today, Feb. 2, 2001, at 1C ("'After we saw [the technology offered as an experiment], we thought it would be an asset,' [Maj. K.C.] Newcomb said. 'I was fully comfortable that we were not infringing on anybody's rights.'"); cf. supra note 290 and accompanying text.
488. Jim Loney, Super Bowl Surveillance Draws Protest from ACLU, The San Diego Union-Tribune, Feb. 2, 2001, at A-15 ('"If this tool could prevent a terrorist act or something else, I think the tool will be priceless,' Durkin said. 'The vast majority of visitors to Raymond James (Stadium) would applaud our efforts to keep it safe for everyone.'").
489. Cf. Rosen, A Watchful State, supra note 122, at 42 (describing how the head of company developing face-recognition technology said he would not let the technology be used improperly and noting "it seems odd to put the liberties of a democracy in the hands of one unelected scientist").
490. See, e.g., Kenneth Chang, Clever Wiring Harnesses Tiny Switches, N.Y. Times, July 17, 2001, at F1 (discussing a patent issued to Hewlett-Packard for a molecule-based switch for eventual use in memory chips and computer processors); John Markoff, Researchers Make an Ultra-Tiny Chip, N.Y. Times, June 10, 2001, at 42 (discussing the development of "silicon transistors no more than 70 to 80 atoms wide and 3 atoms thick . . . [which] are capable of switching on and off 1.5 trillion times a second") [hereinafter Markoff, Ultra-Tiny Chip]. According to this news report: The research will make possible computer processor chips with as many as one billion transistors and 20 gigahertz speeds. That is more than 23 times the number of transistors used in Intel's current state-of-the-art Pentium 4 microprocessor, which has 42 million transistors and is capable of executing 1.7 billion instructions a second. Markoff, Ultra-Tiny Chip, supra. In addition, this new chip will consume significantly less electricity than current microprocessors. Id. The article also describes Moore's Law, which states that "the number of transistors that can be etched on a single chip of silicon doubles on average every 18 months." Id.
491. See, e.g., Kenneth Chang, Clever Wiring Harnesses Tiny Switches, N.Y. Times, July 17, 2001, at F1 (discussing a patent issued to Hewlett-Packard for a molecule- based switch for eventual use in memory chips and computer processors); John Markoff, Researchers Make an Ultra-Tiny Chip, N.Y. Times, June 10, 2001, at 42 (discussing the development of "silicon transistors no more than 70 to 80 atoms wide and 3 atoms thick . . . [which] are capable of switching on and off 1.5 trillion times a second") [hereinafter Markoff, Ultra-Tiny Chip]. According to this news report: The research will make possible computer processor chips with as many as one billion transistors and 20 gigahertz speeds. That is more than 23 times the number of transistors used in Intel's current state-of-the-art Pentium 4 microprocessor, which has 42 million transistors and is capable of executing 1.7 billion instructions a second. Markoff, Ultra-Tiny Chip, supra. In addition, this new chip will consume significantly less electricity than current microprocessors. Id. The article also describes Moore's Law, which states that "the number of transistors that can be etched on a single chip of silicon doubles on average every 18 months." Id.
492. See, e.g., Kenneth Chang, Clever Wiring Harnesses Tiny Switches, N.Y. Times, July 17, 2001, at F1 (discussing a patent issued to Hewlett-Packard for a molecule- based switch for eventual use in memory chips and computer processors); John Markoff, Researchers Make an Ultra-Tiny Chip, N.Y. Times, June 10, 2001, at 42 (discussing the development of "silicon transistors no more than 70 to 80 atoms wide and 3 atoms thick . . . [which] are capable of switching on and off 1.5 trillion times a second") [hereinafter Markoff, Ultra-Tiny Chip]. According to this news report: The research will make possible computer processor chips with as many as one billion transistors and 20 gigahertz speeds. That is more than 23 times the number of transistors used in Intel's current state-of-the-art Pentium 4 microprocessor, which has 42 million transistors and is capable of executing 1.7 billion instructions a second. Markoff, Ultra-Tiny Chip, supra. In addition, this new chip will consume significantly less electricity than current microprocessors. Id. The article also describes Moore's Law, which states that "the number of transistors that can be etched on a single chip of silicon doubles on average every 18 months." Id.
493. See Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820, 824 (1994) ("[T]he Fourth Amendment, more than many other parts of the Constitution, appears to require a fairly high level of abstraction of purpose; its use of the term 'reasonable' (actually, 'unreasonable') positively invites constructions that change with changing circumstances.").
494. See United States v. United States District Court (Keith), 407 U.S. 297, 314-15 (1972) ("As the Fourth Amendment is not absolute in its terms, our task is to examine and balance the basic values at stake in this case: the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression."). Justice Powell further explains in Keith: The marked acceleration in technological developments and sophistication in their use have resulted in new techniques for the planning, commission, and concealment of criminal activities. It would be contrary to the public interest for Government to deny to itself the prudent and lawful employment of those very techniques which are employed against the Government and its law-abiding citizens. . . . . . . . But a recognition of these elementary truths does not make the employment by Government of electronic surveillance a welcome development - even when employed with restraint and under judicial supervision. There is, understandably, a deep-seated uneasiness and apprehension that this capability will be used to intrude upon cherished privacy of law-abiding citizens. Id. at 312. The attacks on the World Trade Center and the Pentagon on September 11, 2001, and the rash of anthrax contaminations which occurred shortly thereafter appeared to profoundly alter Americans' perceptions about the interplay of civil rights and security. See supra note 6 and accompanying text. Congress quickly took steps to significantly increase the authority of law-enforcement agencies such as the FBI and CIA. See supra notes 271-84 and accompanying text. However, several commentators urged caution, lest "security measures start to corrode the very society they are designed to protect." See The National Defense, Editorial, N.Y. Times, Sept. 12, 2001, at A26 ("Americans must rethink how to safeguard the country without bartering away the rights and privileges of the free society that we are defending. . . . President Bush and Congress must carefully balance the need for heightened security with the need to protect the constitutional rights of Americans.").
495. American Criminal Procedure: Cases and Commentary, supra note 399, at 25.
496. See U.S. Dep't of Justice, The Clinton Administration's Law Enforcement Strategy: The 21st Century Law Enforcement and Public Safety Act 2-3 (May 1999) (identifying drugs, gun-violence, and terrorism as several of "the cornerstones of the Clinton Administration's anti-crime policy").
497. Such extraordinary events as the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, OK, in April 1995, which killed 168 people and injured more than 700, and of the World Trade Center in New York City in 1993 have clearly had a substantial impact on the nation's sense of its peril and its vulnerability. Several high-profile airplane disasters seem to further galvanize this perception. Louis J. Freeh, FBI, Ensuring Public Safety and National Security Under the Rule of Law: A Report to the American People on the Work of the FBI 1993-1998, at 3-4 (undated).
498. See supra notes 6-7 and 271-84 and accompanying text.
499. In 1996, President Clinton signed an Executive Order ("E.O.") creating a Commission on Critical Infrastructure Protection. See Exec. Order No. 13,010, 61 Fed. Reg. 37,347 (July 17, 1996). Executive Order 13,010 identified as critical infrastructure the following: "telecommunications, electrical power systems, gas and oil storage and transportation, banking and finance, transportation, water supply systems, emergency services (including medical, police, fire, and rescue)." Id. (The E.O. also included "continuity of government" as a critical infrastructure. See id.) The E.O. then delineated two types of threats - "physical threats to tangible property" and "threats of electronic, radio-frequency, or computer-based attacks on the information or communications components that control critical infrastructures ('cyber threats')" - and noted that "many of these critical infrastructures are owned and operated by the private sector." See id.; see also The Clinton Administration's Policy on Critical Infrastructure Protection: Presidential Decision Directive 63, at 1 (May 22, 1998). In 1998, the FBI established a National Infrastructure Protection Center "to prevent, deter, respond to, and investigate attacks on the nation's critical infrastructure." Counterterrorism Threat Assessment and Warning Unit, U.S. Dep't of Justice, Terrorism in the United States: 1998, at 9, 17, available at http://www.fbi.gov/library/terror/terroris.htm.
500. Sir Robert Peel, who is largely credited with devising the model in 1882 in London of the modern police force, countered his opponents' suggestions that such an organized police would infringe people's liberty by "asking if liberty '. . . consists[s] [sic] in having your house robbed by organized gangs of thieves?'" Christopher Slobogin, Criminal Procedure: Regulation of Police Investigation 3 (2d ed. 1998) (quoting George L. Kirkham & Laurin A. Wollan, Jr., Introduction to Law Enforcement (1980)); see also Saltzburg, supra note 328, at 1001 ("Only in a secure nation can the rights and liberties guaranteed by the Constitution themselves be secure."); Chiarella & Newton, supra note 131, at 25-26 ("No governmental interest is more fundamental than guaranteeing the security of the nation. Only in a secure nation can the rights and liberties guaranteed by the Constitution be secure. United States intelligence activities play a vital role in the protection of national security . . . ." (footnotes omitted)). Similarly, a person wrongfully accused and convicted is most poignantly and pointedly denied his liberty - so technologies such as DNA analysis, which exculpate the innocent as much as they inculpate the guilty, have potentially great value in ensuring our liberty.
501. See supra note 422.
502. See generally Philip A. Talmadge, The Myth of Property Absolutism and Modern Government: The Interaction of Police Power and Property Rights, 75 Wash. L. Rev. 857 (2000). Quoting Madison in Federalist 45 as stating that "ft]he powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State," Judge Talmadge noted that "[e]ven the advocates of a smaller federal governmental presence, such as Madison, conceded the need for vigorous exercise of government power by the states." Id. at 867.
503. See generally Philip A. Talmadge, The Myth of Property Absolutism and Modern Government: The Interaction of Police Power and Property Rights, 75 Wash. L. Rev. 857 (2000). Quoting Madison in Federalist 45 as stating that "ft]he powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the
504. See id. at 868. Judge Talmadge noted, "Although the U.S. Constitution does not specifically reference the police power, the Founders envisioned a federal government actively exercising police powers within the sphere of its enumerated powers. The Framers considered the police power an essential attribute of government sovereignty." Id. (footnotes omitted).
505. See Steiker, supra note 421, at 824 (responding to and criticizing Professor Amar's "intentionalist" reading of the Fourth Amendment). Professor Steiker notes: "[A]t the time of the drafting and ratifying of the Fourth Amendment, nothing even remotely resembling modern law enforcement existed. The invention in the nineteenth century of armed, quasi-military, professional police forces, whose form, function, and daily presence differ dramatically from that of the colonial constabulary . . . ." Id.
506. Baker, supra note 243, at 678 (discussing how federalization of crime contradicts constitutional notions of the respective federal and state police powers). Professor Baker cites "the Supreme Court's statement in United States v. Lopez that the Commerce Clause power does not include a general police power to define and punish all crimes," and notes that "Congress and the Justice Department, however, continue to act as if the federal government has virtually unlimited police powers." Id. at 674 (footnotes omitted). A report from a commission Congress created in 1997 as part of the Antiterrorism and Effective Death Penalty Act described the proliferation of federal crimes as "startling." Commission on the Advancement of Federal Law Enforcement, Law Enforcement in a New Century and A Changing World: Improving the Administration of Federal Law Enforcement 2 (2000). The report continued: In 1789, perhaps a dozen crimes were considered sufficiently serious to warrant Federal attention; today that total exceeds 3,000. Federalizing common crimes - crimes that historically were the responsibility of State and local law enforcement agencies - has placed U.S. society in danger of having Federal law enforcement resources spread much too thinly. If the trend continues, the United States will develop the type of national police force that we have traditionally avoided. Id.
507. See supra note 126-27 and accompanying text.
508. See Baker, supra note 243, at 674; Talmadge, supra note 430, at 868 ("The powers delegated by the proposed Constitution to the federal government are few and defined.") (quoting The Federalist No. 45).
509. See Baker, supra note 243, at 674; Talmadge, supra note 430, at 868 ("The powers delegated by the proposed Constitution to the federal government are few and defined.") (quoting The Federalist No. 45).
510. Palko v. Connecticut, 302 U.S. 319, 325 (1937).
511. See, e.g., United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000) (describing how the Court strictly scrutinizes legislation regulating speech by requiring the regulation to be "narrowly tailored to promote a compelling Government interest").
512. INS v. Chadha, 462 U.S. 919 (1983).
513. Id. at 944.
514. See, e.g., Davis v. United States, 512 U.S. 452, 461 (1994) (noting law enforcement is the other side of "the Miranda equation").
515. See supra note 342.
516. See supra Part I.A & notes 305-08 and accompanying text.
517. See supra Part I.A.
518. See supra notes 287-303 and accompanying text.
519. See supra note 135 and accompanying text.
520. The centerpiece of Professor Amsterdam's proposal for reform was "that police discretion to conduct search and seizure activity be tolerably confined by either legislation or police-made rules and regulations, subject to judicial review for reasonableness." See Amsterdam, supra note 290, at 409. Professor Amsterdam explained: I think that the Court should hold that the fourth amendment requires all police search and seizure activity to be regulated by legal directives that confine police discretion within reasonable bounds. . . . Unless a search or seizure is conducted pursuant to and in conformity with either legislation or police departmental rules and regulations, it is an unreasonable search and seizure prohibited by the fourth amendment. Id. at 416. Professor Amsterdam indicated a preference for rulemaking, skeptical as he was about the ability of the legislature to meet this challenge. See id. at 378-79 ("The long-time, wholesale 'legislative default' in regulating police practices is no accident. Legislatures have not been, are not now, and are not likely to become sensitive to concerns of protecting persons under investigation by the police."). Similarly, Professor Amar has suggested that a meaningful Fourth Amendment should be prospectively rather than retroactively regulatory. See Amar, supra note 142, at 815 ("Early prevention is often better than after-the-fact remedy."). Further, he has suggested greater input by citizenry, such as through citizen review panels and "public promulgation of agency guidelines [that] will enable the citizenry to better assess the things done in their name." See id. at 817. Richard Morgan, seeking a middle ground, has stated: "What is needed is a flexible combination of statutory and administrative rules with oversight mechanisms adjusted so that compliance is strongly encouraged, but without paralyzing law enforcement agencies when crime is suspected in political contexts." See Morgan supra note 135, at 13. Professor Gerard Bradley also criticizes the present "'judicialized' regime of search and seizure" and argues that "the reasonableness clause, properly understood . . . exists to affirm legislative supremacy over the law of search and seizure." See Gerard V. Bradley, The Constitutional Theory of the Fourth Amendment, 38 DePaul L. Rev. 817, 817 (1989). He therefore advocates placing (or rather replacing) the power to "shape our 'living' law of search and seizure" into the hands of legislators rather than judges, see id. at 856-57, and suggests Title III as paradigmatic: "Having decided that society deems electronic surveillance to be fourth amendment activity, the Court in effect said to Congress: put together a regulatory scheme along the lines which we have sketched here." Id. at 869 (footnote omitted).
521. The centerpiece of Professor Amsterdam's proposal for reform was "that police discretion to conduct search and seizure activity be tolerably confined by either legislation or police-made rules and regulations, subject to judicial review for reasonableness." See Amsterdam, supra note 290, at 409. Professor Amsterdam explained: I think that the Court should hold that the fourth amendment requires all police search and seizure activity to be regulated by legal directives that confine police discretion within reasonable bounds. . . . Unless a search or seizure is conducted pursuant to and in conformity with either legislation or police departmental rules and regulations, it is an unreasonable search and seizure prohibited by the fourth amendment. Id. at 416. Professor Amsterdam indicated a preference for rulemaking, skeptical as he was about the ability of the legislature to meet this challenge. See id. at 378-79 ("The long-time, wholesale 'legislative default' in regulating police practices is no accident. Legislatures have not been, are not now, and are not likely to become sensitive to concerns of protecting persons under investigation by the police."). Similarly, Professor Amar has suggested that a meaningful Fourth Amendment should be prospectively rather than retroactively regulatory. See Amar, supra note 142, at 815 ("Early prevention is often better than after-the-fact remedy."). Further, he has suggested greater input by citizenry, such as through citizen review panels and "public promulgation of agency guidelines [that] will enable the citizenry to better assess the things done in their name." See id. at 817. Richard Morgan, seeking a middle ground, has stated: "What is needed is a flexible combination of statutory and administrative rules with oversight mechanisms adjusted so that compliance is strongly encouraged, but without paralyzing law enforcement agencies when crime is suspected in political contexts." See Morgan supra note 135, at 13. Professor Gerard Bradley also criticizes the present "'judicialized' regime of search and seizure" and argues that "the reasonableness clause, properly understood . . . exists to affirm legislative supremacy over the law of search and seizure." See Gerard V. Bradley, The Constitutional Theory of the Fourth Amendment, 38 DePaul L. Rev. 817, 817 (1989). He therefore advocates placing (or rather replacing) the power to "shape our 'living' law of search and seizure" into the hands of legislators rather than judges, see id. at 856-57, and suggests Title III as paradigmatic: "Having decided that society deems electronic surveillance to be fourth amendment activity, the Court in effect said to Congress: put together a regulatory scheme along the lines which we have sketched here." Id. at 869 (footnote omitted).
522. The centerpiece of Professor Amsterdam's proposal for reform was "that police discretion to conduct search and seizure activity be tolerably confined by either legislation or police-made rules and regulations, subject to judicial review for reasonableness." See Amsterdam, supra note 290, at 409. Professor Amsterdam explained: I think that the Court should hold that the fourth amendment requires all police search and seizure activity to be regulated by legal directives that confine police discretion within reasonable bounds. . . . Unless a search or seizure is conducted pursuant to and in conformity with either legislation or police departmental rules and regulations, it is an unreasonable search and seizure prohibited by the fourth amendment. Id. at 416. Professor Amsterdam indicated a preference for rulemaking, skeptical as he was about the ability of the legislature to meet this challenge. See id. at 378-79 ("The long-time, wholesale 'legislative default' in regulating police practices is no accident. Legislatures have not been, are not now, and are not likely to become sensitive to concerns of protecting persons under investigation by the police."). Similarly, Professor Amar has suggested that a meaningful Fourth Amendment should be prospectively rather than retroactively regulatory. See Amar, supra note 142, at 815 ("Early prevention is often better than after-the-fact remedy."). Further, he has suggested greater input by citizenry, such as through citizen review panels and "public promulgation of agency guidelines [that] will enable the citizenry to better assess the things done in their name." See id. at 817. Richard Morgan, seeking a middle ground, has stated: "What is needed is a flexible combination of statutory and administrative rules with oversight mechanisms adjusted so that compliance is strongly encouraged, but without paralyzing law enforcement agencies when crime is suspected in political contexts." See Morgan supra note 135, at 13. Professor Gerard Bradley also criticizes the present "'judicialized' regime of search and seizure" and argues that "the reasonableness clause, properly understood . . . exists to affirm legislative supremacy over the law of search and seizure." See Gerard V. Bradley, The Constitutional Theory of the Fourth Amendment, 38 DePaul L. Rev. 817, 817 (1989). He therefore advocates placing (or rather replacing) the power to "shape our 'living' law of search and seizure" into the hands of legislators rather than judges, see id. at 856-57, and suggests Title III as paradigmatic: "Having decided that society deems electronic surveillance to be fourth amendment activity, the Court in effect said to Congress: put together a regulatory scheme along the lines which we have sketched here." Id. at 869 (footnote omitted).
523. The centerpiece of Professor Amsterdam's proposal for reform was "that police discretion to conduct search and seizure activity be tolerably confined by either legislation or police-made rules and regulations, subject to judicial review for reasonableness." See Amsterdam, supra note 290, at 409. Professor Amsterdam explained: I think that the Court should hold that the fourth amendment requires all police search and seizure activity to be regulated by legal directives that confine police discretion within reasonable bounds. . . . Unless a search or seizure is conducted pursuant to and in conformity with either legislation or police departmental rules and regulations, it is an unreasonable search and seizure prohibited by the fourth amendment. Id. at 416. Professor Amsterdam indicated a preference for rulemaking, skeptical as he was about the ability of the legislature to meet this challenge. See id. at 378-79 ("The long-time, wholesale 'legislative default' in regulating police practices is no accident. Legislatures have not been, are not now, and are not likely to become sensitive to concerns of protecting persons under investigation by the police."). Similarly, Professor Amar has suggested that a meaningful Fourth Amendment should be prospectively rather than retroactively regulatory. See Amar, supra note 142, at 815 ("Early prevention is often better than after-the-fact remedy."). Further, he has suggested greater input by citizenry, such as through citizen review panels and "public promulgation of agency guidelines [that] will enable the citizenry to better assess the things done in their name." See id. at 817. Richard Morgan, seeking a middle ground, has stated: "What is needed is a flexible combination of statutory and administrative rules with oversight mechanisms adjusted so that compliance is strongly encouraged, but without paralyzing law enforcement agencies when crime is suspected in political contexts." See Morgan supra note 135, at 13. Professor Gerard Bradley also criticizes the present "'judicialized' regime of search and seizure" and argues that "the reasonableness clause, properly understood . . . exists to affirm legislative supremacy over the law of search and seizure." See Gerard V. Bradley, The Constitutional Theory of the Fourth Amendment, 38 DePaul L. Rev. 817, 817 (1989). He therefore advocates placing (or rather replacing) the power to "shape our 'living' law of search and seizure" into the hands of legislators rather than judges, see id. at 856-57, and suggests Title III as paradigmatic: "Having decided that society deems electronic surveillance to be fourth amendment activity, the Court in effect said to Congress: put together a regulatory scheme along the lines which we have sketched here." Id. at 869 (footnote omitted).
524. The centerpiece of Professor Amsterdam's proposal for reform was "that police discretion to conduct search and seizure activity be tolerably confined by either legislation or police-made rules and regulations, subject to judicial review for reasonableness." See Amsterdam, supra note 290, at 409. Professor Amsterdam explained: I think that the Court should hold that the fourth amendment requires all police search and seizure activity to be regulated by legal directives that confine police discretion within reasonable bounds. . . . Unless a search or seizure is conducted pursuant to and in conformity with either legislation or police departmental rules and regulations, it is an unreasonable search and seizure prohibited by the fourth amendment. Id. at 416. Professor Amsterdam indicated a preference for rulemaking, skeptical as he was about the ability of the legislature to meet this challenge. See id. at 378-79 ("The long-time, wholesale 'legislative default' in regulating police practices is no accident. Legislatures have not been, are not now, and are not likely to become sensitive to concerns of protecting persons under investigation by the police."). Similarly, Professor Amar has suggested that a meaningful Fourth Amendment should be prospectively rather than retroactively regulatory. See Amar, supra note 142, at 815 ("Early prevention is often better than after-the-fact remedy."). Further, he has suggested greater input by citizenry, such as through citizen review panels and "public promulgation of agency guidelines [that] will enable the citizenry to better assess the things done in their name." See id. at 817. Richard Morgan, seeking a middle ground, has stated: "What is needed is a flexible combination of statutory and administrative rules with oversight mechanisms adjusted so that compliance is strongly encouraged, but without paralyzing law enforcement agencies when crime is suspected in political contexts." See Morgan supra note 135, at 13. Professor Gerard Bradley also criticizes the present "'judicialized' regime of search and seizure" and argues that "the reasonableness clause, properly understood . . . exists to affirm legislative supremacy over the law of search and seizure." See Gerard V. Bradley, The Constitutional Theory of the Fourth Amendment, 38 DePaul L. Rev. 817, 817 (1989). He therefore advocates placing (or rather replacing) the power to "shape our 'living' law of search and seizure" into the hands of legislators rather than judges, see id. at 856-57, and suggests Title III as paradigmatic: "Having decided that society deems electronic surveillance to be fourth amendment activity, the Court in effect said to Congress: put together a regulatory scheme along the lines which we have sketched here." Id. at 869 (footnote omitted).
525. The centerpiece of Professor Amsterdam's proposal for reform was "that police discretion to conduct search and seizure activity be tolerably confined by either legislation or police-made rules and regulations, subject to judicial review for reasonableness." See Amsterdam, supra note 290, at 409. Professor Amsterdam explained: I think that the Court should hold that the fourth amendment requires all police search and seizure activity to be regulated by legal directives that confine police discretion within reasonable bounds. . . . Unless a search or seizure is conducted pursuant to and in conformity with either legislation or police departmental rules and regulations, it is an unreasonable search and seizure prohibited by the fourth amendment. Id. at 416. Professor Amsterdam indicated a preference for rulemaking, skeptical as he was about the ability of the legislature to meet this challenge. See id. at 378-79 ("The long-time, wholesale 'legislative default' in regulating police practices is no accident. Legislatures have not been, are not now, and are not likely to become sensitive to concerns of protecting persons under investigation by the police."). Similarly, Professor Amar has suggested that a meaningful Fourth Amendment should be prospectively rather than retroactively regulatory. See Amar, supra note 142, at 815 ("Early prevention is often better than after-the-fact remedy."). Further, he has suggested greater input by citizenry, such as through citizen review panels and "public promulgation of agency guidelines [that] will enable the citizenry to better assess the things done in their name." See id. at 817. Richard Morgan, seeking a middle ground, has stated: "What is needed is a flexible combination of statutory and administrative rules with oversight mechanisms adjusted so that compliance is strongly encouraged, but without paralyzing law enforcement agencies when crime is suspected in political contexts." See Morgan supra note 135, at 13. Professor Gerard Bradley also criticizes the present "'judicialized' regime of search and seizure" and argues that "the reasonableness clause, properly understood . . . exists to affirm legislative supremacy over the law of search and seizure." See Gerard V. Bradley, The Constitutional Theory of the Fourth Amendment, 38 DePaul L. Rev. 817, 817 (1989). He therefore advocates placing (or rather replacing) the power to "shape our 'living' law of search and seizure" into the hands of legislators rather than judges, see id. at 856-57, and suggests Title III as paradigmatic: "Having decided that society deems electronic surveillance to be fourth amendment activity, the Court in effect said to Congress: put together a regulatory scheme along the lines which we have sketched here." Id. at 869 (footnote omitted).
526. One of the reasons the American Bar Association promulgated standards related to electronic surveillance was to "encourage the development - both by legislatures and administrative bodies - of even more specific written rules governing technologically-assisted physical surveillance." ABA Standards for Electronic Surveillance, supra note 67, at 7.
527. See supra notes 305-08 and accompanying text.
528. See id.
529. See supra notes 44-46, 316-23 and accompanying text for a description and discussion of Carnivore.
530. See supra note 274 for a discussion of recent legislation whose measures were out of proportion, if not entirely unrelated, to the problem purportedly addressed.
531. See Independent Review of Carnivore, supra note 43, at 3-4 to 3-5.
532. See supra notes 317-23 and accompanying text.
533. See supra note 135 and accompanying text for discussion of abuses by law enforcement, and supra notes 345-48 and accompanying text for discussion of how officials in intelligence agencies bristle under the current rules.
534. See Amsterdam, supra note 290, at 429 ("Judicial review both of the substance of the rules and of police compliance with them in particular cases remains essential.").
535. See Barr, supra note 109, at 75 (discussing the surreptitious enactment of a provision broadening the use of "roving wiretaps"). If, as seems likely, neither the courts nor the populace would permit Congress to quietly and surreptitiously pass a law affecting a First Amendment right, it seems worth asking why the courts would treat a law affecting Fourth Amendment rights any differently.
536. See supra note 272 and accompanying text for discussion of pressure exerted by the Bush administration on Congress to quickly enact wide-reaching legislation. Although legislation strengthening the government's surveillance powers passed by overwhelming majorities in the House (337-79) and Senate (96-1), it was enacted with little debate in the House and Senate. See Toner & Lewis, House Passes Terrorism Bill, supra note 273; Robin Toner & Neil A. Lewis, Bill Greatly Expanding Surveillance Power in Terrorism Fight Clears the Senate, N.Y. Times, Oct 12, at B11. However, the version of the bill passed by the House was different from the version negotiated and unanimously adopted by the House Judiciary Committee; the version passed was one agreed on by "top House Republicans and the Bush administration" and inserted at the last minute, so that there was little opportunity to read and debate the bill. See Toner & Lewis, House Passes Terrorism Bill, supra note 273.
537. See supra note 272 and accompanying text for discussion of pressure exerted by the Bush administration on Congress to quickly enact wide-reaching legislation. Although legislation strengthening the government's surveillance powers passed by overwhelming majorities in the House (337-79) and Senate (96-1), it was enacted with little debate in the House and Senate. See Toner & Lewis, House Passes Terrorism Bill, supra note 273; Robin Toner & Neil A. Lewis, Bill Greatly Expanding Surveillance Power in Terrorism Fight Clears the Senate, N.Y. Times, Oct 12, at B11. However, the version of the bill passed by the House was different from the version negotiated and unanimously adopted by the House Judiciary Committee; the version passed was one agreed on by "top House Republicans and the Bush administration" and inserted at the last minute, so that there was little opportunity to read and debate the bill. See Toner & Lewis, House Passes Terrorism Bill, supra note 273.
538. See supra note 272 and accompanying text for discussion of pressure exerted by the Bush administration on Congress to quickly enact wide-reaching legislation. Although legislation strengthening the government's surveillance powers passed by overwhelming majorities in the House (337-79) and Senate (96-1), it was enacted with little debate in the House and Senate. See Toner & Lewis, House Passes Terrorism Bill, supra note 273; Robin Toner & Neil A. Lewis, Bill Greatly Expanding Surveillance Power in Terrorism Fight Clears the Senate, N.Y. Times, Oct 12, at B11. However, the version of the bill passed by the House was different from the version negotiated and unanimously adopted by the House Judiciary Committee; the version passed was one agreed on by "top House Republicans and the Bush administration" and inserted at the last minute, so that there was little opportunity to read and debate the bill. See Toner & Lewis, House Passes Terrorism Bill, supra note 273.
539. Ely, supra note 13, at 87.
540. See id. at 73-104.
541. Id. at 101-02.
542. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984) (establishing rule that courts should defer to an agency if the agency's interpretation of a statute is reasonable); SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 202-03 (1947) (holding that administrative agencies may flesh out vague and ambiguous statutes through retroactive adjudication); see e.g., U.S. Telecom Ass'n v. FCC, 227 F.3d 450, 457-58 (D.C. Cir. 2000) (stating the Chevron doctrine).
543. Cf. INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1986) (stating as a reason for not deferring to an administrative agency's construction of a statute that "a pure question of statutory construction [is] for the courts to decide").
544. See, e.g., United States v. Virginia, 518 U.S. 515, 524 (1996) (holding that Virginia failed to show "an exceedingly persuasive justification" for its all-male state- supported military academy); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) ("[W]e hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests."); Craig v. Boren, 429 U.S. 190, 204 (1976) (holding that Oklahoma in enacting a statute that treated men and women differently failed to show that the gender-based distinction served an important governmental interest and was substantially related to its objective); see also supra note 437 and accompanying text.
545. See U.S. Const. art III, § 2.
546. See supra notes 142-56 and accompanying text for discussion of warrants and immunity. The USA Patriot Act of 2001 also created immunity for non-governmental agents who assist with a wiretap pursuant to FISA. See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, § 225, 115 Stat. 272 (2001) (amending 50 U.S.C. § 1805). The new law provides: No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under this Act. 50 U.S.C. § 1805(h).
547. See Amar, supra note 142, passim.
548. Id. at 812-13.
549. See supra notes 446-54 and accompanying text.
550. See Amar, supra note 142, at 816-17 (discussing the benefits of citizen review or advisory panels).
551. See Amar, supra note 142, passim.
552. See supra notes 407-11 and accompanying text.
553. See supra notes 142-56 and accompanying text.
554. See supra Part II and text accompanying notes 442-45.
555. See supra notes 77-83 and accompanying text.
556. See supra notes 128-29 and accompanying text.
557. For example, rudimentary thermal imagers can be used to monitor unusual heat patterns emanating from houses, while more sophisticated versions can detect weapons, drugs, and other contraband on people. See supra notes 77-83 and accompanying text.
558. See supra note 413 and accompanying text.
559. Since it would be impractical to require law enforcement to secure warrants for broad but minimally invasive surveillance such as face-recognition cameras or airport metal detectors, the Court has crafted an administrative or special-needs exception to the warrant requirement. See Buffaloe, supra note 142, at 533-42. However, once a technology has been deemed not to implicate the Fourth Amendment, there are effectively no other controls over its use.
560. The prime example of this is surveillance orders for wiretaps. See Taylor, supra note 139, at 79-85 (discussing differences between search warrants and surveillance orders). Though often treated as synonymous with regular search warrants, surveillance orders were designed initially to be more cumbersome. See supra note 237-42 and accompanying text.
561. See supra Part II.A.1.
562. Amsterdam, supra note 290, at 423-24; supra Part II.A.1.
563. Amsterdam, supra note 290, at 425.
564. Id. at 426.
565. Id. at 426-27.
566. Id. at 428 (emphasis in original omitted).
567. The financial costs of surveillance are substantial. In 1999, courts authorized federal and state law-enforcement to conduct 1350 wiretaps. See Wiretap Report 1999, supra note 26, at 7. The total cost of these wiretaps was in excess of $70 million, and the average wiretap cost $57,511, of which the cost in manpower constitutes the vast majority of this expense. See Wiretap Report 1999, supra note 26, at 10. Dwarfing this sum, however, is the $500 million that taxpayers will pay to retrofit existing telecommunications facilities so that law enforcement has a guaranteed right of access to any and all electronic communications, pursuant to CALEA. See OTA, Surveillance in a Digital Age, supra note 21, at 6. One recent estimate placed the cost of electronic surveillance and spy satellites at $10 billion a year. See Tim Weiner, To Fight in the Shadows, Get Better Eyes, N.Y. Times, Oct. 7, 2001, § 4 (Week in Review), at 1. There is also reason to question the value of these large investments. Recently, the government disclosed that a U.S. federal agent spying for the Soviet and Russian governments compromised a surveillance operation under the Russian Embassy in Washington, D.C. costing "several hundred million dollars." James Risen & Lowell Bergman, U.S. Thinks Agent Revealed Tunnel at Soviet Embassy: Costly Effort to Spy in Washington Was Ruined, Officials Say, N.Y. Times, Mar. 4, 2001, at 1. The journalists also note that this was not atypical. Id. ("The tunnel operation against the Soviet complex . . . is just one of many similar clandestine technical operations run by the United States intelligence community . . . . And, like the embassy operation, many of those other operations were eventually compromised by spies."). Critics also question whether the track record of databases are any better. For example, in his evaluation of the Treasury Department's FinCEN, Steven Bercu asserts that the benefits of FinCEN have never been adequately shown. See Bercu, supra note 96, at 447-48.
568. The financial costs of surveillance are substantial. In 1999, courts authorized federal and state law-enforcement to conduct 1350 wiretaps. See Wiretap Report 1999, supra note 26, at 7. The total cost of these wiretaps was in excess of $70 million, and the average wiretap cost $57,511, of which the cost in manpower constitutes the vast majority of this expense. See Wiretap Report 1999, supra note 26, at 10. Dwarfing this sum, however, is the $500 million that taxpayers will pay to retrofit existing telecommunications facilities so that law enforcement has a guaranteed right of access to any and all electronic communications, pursuant to CALEA. See OTA, Surveillance in a Digital Age, supra note 21, at 6. One recent estimate placed the cost of electronic surveillance and spy satellites at $10 billion a year. See Tim Weiner, To Fight in the Shadows, Get Better Eyes, N.Y. Times, Oct. 7, 2001, § 4 (Week in Review), at 1. There is also reason to question the value of these large investments. Recently, the government disclosed that a U.S. federal agent spying for the Soviet and Russian governments compromised a surveillance operation under the Russian Embassy in Washington, D.C. costing "several hundred million dollars." James Risen & Lowell Bergman, U.S. Thinks Agent Revealed Tunnel at Soviet Embassy: Costly Effort to Spy in Washington Was Ruined, Officials Say, N.Y. Times, Mar. 4, 2001, at 1. The journalists also note that this was not atypical. Id. ("The tunnel operation against the Soviet complex . . . is just one of many similar clandestine technical operations run by the United States intelligence community . . . . And, like the embassy operation, many of those other operations were eventually compromised by spies."). Critics also question whether the track record of databases are any better. For example, in his evaluation of the Treasury Department's FinCEN, Steven Bercu asserts that the benefits of FinCEN have never been adequately shown. See Bercu, supra note 96, at 447-48.
569. The financial costs of surveillance are substantial. In 1999, courts authorized federal and state law-enforcement to conduct 1350 wiretaps. See Wiretap Report 1999, supra note 26, at 7. The total cost of these wiretaps was in excess of $70 million, and the average wiretap cost $57,511, of which the cost in manpower constitutes the vast majority of this expense. See Wiretap Report 1999, supra note 26, at 10. Dwarfing this sum, however, is the $500 million that taxpayers will pay to retrofit existing telecommunications facilities so that law enforcement has a guaranteed right of access to any and all electronic communications, pursuant to CALEA. See OTA, Surveillance in a Digital Age, supra note 21, at 6. One recent estimate placed the cost of electronic surveillance and spy satellites at $10 billion a year. See Tim Weiner, To Fight in the Shadows, Get Better Eyes, N.Y. Times, Oct. 7, 2001, § 4 (Week in Review), at 1. There is also reason to question the value of these large investments. Recently, the government disclosed that a U.S. federal agent spying for the Soviet and Russian governments compromised a surveillance operation under the Russian Embassy in Washington, D.C. costing "several hundred million dollars." James Risen & Lowell Bergman, U.S. Thinks Agent Revealed Tunnel at Soviet Embassy: Costly Effort to Spy in Washington Was Ruined, Officials Say, N.Y. Times, Mar. 4, 2001, at 1. The journalists also note that this was not atypical. Id. ("The tunnel operation against the Soviet complex . . . is just one of many similar clandestine technical operations run by the United States intelligence community . . . . And, like the embassy operation, many of those other operations were eventually compromised by spies."). Critics also question whether the track record of databases are any better. For example, in his evaluation of the Treasury Department's FinCEN, Steven Bercu asserts that the benefits of FinCEN have never been adequately shown. See Bercu, supra note 96, at 447-48.
570. The financial costs of surveillance are substantial. In 1999, courts authorized federal and state law-enforcement to conduct 1350 wiretaps. See Wiretap Report 1999, supra note 26, at 7. The total cost of these wiretaps was in excess of $70 million, and the average wiretap cost $57,511, of which the cost in manpower constitutes the vast majority of this expense. See Wiretap Report 1999, supra note 26, at 10. Dwarfing this sum, however, is the $500 million that taxpayers will pay to retrofit existing telecommunications facilities so that law enforcement has a guaranteed right of access to any and all electronic communications, pursuant to CALEA. See OTA, Surveillance in a Digital Age, supra note 21, at 6. One recent estimate placed the cost of electronic surveillance and spy satellites at $10 billion a year. See Tim Weiner, To Fight in the Shadows, Get Better Eyes, N.Y. Times, Oct. 7, 2001, § 4 (Week in Review), at 1. There is also reason to question the value of these large investments. Recently, the government disclosed that a U.S. federal agent spying for the Soviet and Russian governments compromised a surveillance operation under the Russian Embassy in Washington, D.C. costing "several hundred million dollars." James Risen & Lowell Bergman, U.S. Thinks Agent Revealed Tunnel at Soviet Embassy: Costly Effort to Spy in Washington Was Ruined, Officials Say, N.Y. Times, Mar. 4, 2001, at 1. The journalists also note that this was not atypical. Id. ("The tunnel operation against the Soviet complex . . . is just one of many similar clandestine technical operations run by the United States intelligence community . . . . And, like the embassy operation, many of those other operations were eventually compromised by spies."). Critics also question whether the track record of databases are any better. For example, in his evaluation of the Treasury Department's FinCEN, Steven Bercu asserts that the benefits of FinCEN have never been adequately shown. See Bercu, supra note 96, at 447-48.
571. The financial costs of surveillance are substantial. In 1999, courts authorized federal and state law-enforcement to conduct 1350 wiretaps. See Wiretap Report 1999, supra note 26, at 7. The total cost of these wiretaps was in excess of $70 million, and the average wiretap cost $57,511, of which the cost in manpower constitutes the vast majority of this expense. See Wiretap Report 1999, supra note 26, at 10. Dwarfing this sum, however, is the $500 million that taxpayers will pay to retrofit existing telecommunications facilities so that law enforcement has a guaranteed right of access to any and all electronic communications, pursuant to CALEA. See OTA, Surveillance in a Digital Age, supra note 21, at 6. One recent estimate placed the cost of electronic surveillance and spy satellites at $10 billion a year. See Tim Weiner, To Fight in the Shadows, Get Better Eyes, N.Y. Times, Oct. 7, 2001, § 4 (Week in Review), at 1. There is also reason to question the value of these large investments. Recently, the government disclosed that a U.S. federal agent spying for the Soviet and Russian governments compromised a surveillance operation under the Russian Embassy in Washington, D.C. costing "several hundred million dollars." James Risen & Lowell Bergman, U.S. Thinks Agent Revealed Tunnel at Soviet Embassy: Costly Effort to Spy in Washington Was Ruined, Officials Say, N.Y. Times, Mar. 4, 2001, at 1. The journalists also note that this was not atypical. Id. ("The tunnel operation against the Soviet complex . . . is just one of many similar clandestine technical operations run by the United States intelligence community . . . . And, like the embassy operation, many of those other operations were eventually compromised by spies."). Critics also question whether the track record of databases are any better. For example, in his evaluation of the Treasury Department's FinCEN, Steven Bercu asserts that the benefits of FinCEN have never been adequately shown. See Bercu, supra note 96, at 447-48.
572. The financial costs of surveillance are substantial. In 1999, courts authorized federal and state law-enforcement to conduct 1350 wiretaps. See Wiretap Report 1999, supra note 26, at 7. The total cost of these wiretaps was in excess of $70 million, and the average wiretap cost $57,511, of which the cost in manpower constitutes the vast majority of this expense. See Wiretap Report 1999, supra note 26, at 10. Dwarfing this sum, however, is the $500 million that taxpayers will pay to retrofit existing telecommunications facilities so that law enforcement has a guaranteed right of access to any and all electronic communications, pursuant to CALEA. See OTA, Surveillance in a Digital Age, supra note 21, at 6. One recent estimate placed the cost of electronic surveillance and spy satellites at $10 billion a year. See Tim Weiner, To Fight in the Shadows, Get Better Eyes, N.Y. Times, Oct. 7, 2001, § 4 (Week in Review), at 1. There is also reason to question the value of these large investments. Recently, the government disclosed that a U.S. federal agent spying for the Soviet and Russian governments compromised a surveillance operation under the Russian Embassy in Washington, D.C. costing "several hundred million dollars." James Risen & Lowell Bergman, U.S. Thinks Agent Revealed Tunnel at Soviet Embassy: Costly Effort to Spy in Washington Was Ruined, Officials Say, N.Y. Times, Mar. 4, 2001, at 1. The journalists also note that this was not atypical. Id. ("The tunnel operation against the Soviet complex . . . is just one of many similar clandestine technical operations run by the United States intelligence community . . . . And, like the embassy operation, many of those other operations were eventually compromised by spies."). Critics also question whether the track record of databases are any better. For example, in his evaluation of the Treasury Department's FinCEN, Steven Bercu asserts that the benefits of FinCEN have never been adequately shown. See Bercu, supra note 96, at 447-48.
573. See supra notes 271-76 and accompanying text.
574. See infra note 489.
575. The hijackings exposed how the security measures in place at American airports are poorly enforced. See Kate Zernike, Change Ahead for Troubled Boston Airport Agency, N.Y. Times, Sept. 21, 2001, at A14 (describing Logan Airport's history of security lapses and how sinecure is rife at the authority that runs the airport); see also Carey Goldberg, Boston's Airport Security Is Described as Standard, N.Y. Times, Sept. 12, 2001, at A16 (stating that the type and frequency of security lapses at Logan was comparable to other U.S. airports). A second frequently-cited reason for the "failure" was problems within and among the law-enforcement and intelligence communities, such as internecine battles within the agencies and turf wars without, incompetence, and lack of agents able to translate intercepts of Arabic and Farsi communications. See Seymour M. Hersh, What Went Wrong: The C.I.A. and the Failure of American Intelligence, The New Yorker, Oct. 8, 2001, at 34 (describing problems within the C.I.A., particularly the small and decreasing number of intelligence operatives in the field, that prevented it from detecting and preventing the attacks of September 11); Walter Pincus, Committee: Terrorism Threat Is Long- Term; Agencies Advised To Collaborate More, Wash. Post, Sept. 20, 2001, at A33 (noting the "concern" in Washington, D.C., that "neither the FBI nor CIA has enough Arabic and Farsi translators for the enormous amounts of intelligence intercepts occurring around the world"); Peter Slevin, FBI Courts Arab, Muslim Communities: Agency Seeks Information, Easing of Old Tensions, Wash. Post, Sept. 19, 2001, at A14 (discussing the FBI's difficulty in gaining contacts within the Muslim and Arab-American communities and stating that "the infiltration of terror networks has proven far more difficult than even the puncturing of Soviet intelligence or Mafia families, particularly given a shortage of Arab American agents"); Tim Weiner & David Cay Johnston, Roadblocks Cited in Efforts to Trace Bin Laden's Money, N.Y. Times, Sept. 20, 2001, at A1 (citing as one reason the U.S. government failed to track and stop the flow of money between the terrorists was that the people within the U.S. intelligence agencies assigned the task were "generally incompetent" to handle it). . . . In addition, there are commentators who credit the perpetrators as much as criticize U.S. intelligence and law enforcement. See Hersh, supra; see also Stephen J. Hedges et al., FBI Probes 5th Flight for Hijackers: Plane Grounded on Day of Attack, Chi. Trib., Sept. 18, 2001, at 1 (describing evidence that the hijackers used computers at public libraries to avoid detection while communicating); Weiner, supra note 486 ("[American surveillance's] targets are hard men hiding in shadows and speaking in codes, against whom spy satellites, surveillance systems and smart bombs count for little."). Amid the news about the government's attempt to expand its wiretapping capabilities was the not-very-prominent disclosure of a highly classified internal investigation into alleged improprieties by the FBI in the investigations of the bombings of two United States' embassies in Tanzania and Saudi Arabia in 1998. See David Johnston & James Risen, Officials Say 2 More Jets May Have Been in the Plot, N.Y. Times, Sept. 19, 2001, at B1. According to a report appearing in the New York Times, the investigation was instigated by the chief judge of the Foreign Intelligence Surveillance Court (the court that administers warrants for surveillance orders under FISA), "apparently related to whether the [FBI] was seeking wiretaps under the [Foreign Intelligence Surveillance Act] on individuals without informing the court of a subject's status pending criminal investigations." Id.
576. The hijackings exposed how the security measures in place at American airports are poorly enforced. See Kate Zernike, Change Ahead for Troubled Boston Airport Agency, N.Y. Times, Sept. 21, 2001, at A14 (describing Logan Airport's history of security lapses and how sinecure is rife at the authority that runs the airport); see also Carey Goldberg, Boston's Airport Security Is Described as Standard, N.Y. Times, Sept. 12, 2001, at A16 (stating that the type and frequency of security lapses at Logan was comparable to other U.S. airports). A second frequently-cited reason for the "failure" was problems within and among the law-enforcement and intelligence communities, such as internecine battles within the agencies and turf wars without, incompetence, and lack of agents able to translate intercepts of Arabic and Farsi communications. See Seymour M. Hersh, What Went Wrong: The C.I.A. and the Failure of American Intelligence, The New Yorker, Oct. 8, 2001, at 34 (describing problems within the C.I.A., particularly the small and decreasing number of intelligence operatives in the field, that prevented it from detecting and preventing the attacks of September 11); Walter Pincus, Committee: Terrorism Threat Is Long- Term; Agencies Advised To Collaborate More, Wash. Post, Sept. 20, 2001, at A33 (noting the "concern" in Washington, D.C., that "neither the FBI nor CIA has enough Arabic and Farsi translators for the enormous amounts of intelligence intercepts occurring around the world"); Peter Slevin, FBI Courts Arab, Muslim Communities: Agency Seeks Information, Easing of Old Tensions, Wash. Post, Sept. 19, 2001, at A14 (discussing the FBI's difficulty in gaining contacts within the Muslim and Arab-American communities and stating that "the infiltration of terror networks has proven far more difficult than even the puncturing of Soviet intelligence or Mafia families, particularly given a shortage of Arab American agents"); Tim Weiner & David Cay Johnston, Roadblocks Cited in Efforts to Trace Bin Laden's Money, N.Y. Times, Sept. 20, 2001, at A1 (citing as one reason the U.S. government failed to track and stop the flow of money between the terrorists was that the people within the U.S. intelligence agencies assigned the task were "generally incompetent" to handle it). . . . In addition, there are commentators who credit the perpetrators as much as criticize U.S. intelligence and law enforcement. See Hersh, supra; see also Stephen J. Hedges et al., FBI Probes 5th Flight for Hijackers: Plane Grounded on Day of Attack, Chi. Trib., Sept. 18, 2001, at 1 (describing evidence that the hijackers used computers at public libraries to avoid detection while communicating); Weiner, supra note 486 ("[American surveillance's] targets are hard men hiding in shadows and speaking in codes, against whom spy satellites, surveillance systems and smart bombs count for little."). Amid the news about the government's attempt to expand its wiretapping capabilities was the not-very-prominent disclosure of a highly classified internal investigation into alleged improprieties by the FBI in the investigations of the bombings of two United States' embassies in Tanzania and Saudi Arabia in 1998. See David Johnston & James Risen, Officials Say 2 More Jets May Have Been in the Plot, N.Y. Times, Sept. 19, 2001, at B1. According to a report appearing in the New York Times, the investigation was instigated by the chief judge of the Foreign Intelligence Surveillance Court (the court that administers warrants for surveillance orders under FISA), "apparently related to whether the [FBI] was seeking wiretaps under the [Foreign Intelligence Surveillance Act] on individuals without informing the court of a subject's status pending criminal investigations." Id.
577. The hijackings exposed how the security measures in place at American airports are poorly enforced. See Kate Zernike, Change Ahead for Troubled Boston Airport Agency, N.Y. Times, Sept. 21, 2001, at A14 (describing Logan Airport's history of security lapses and how sinecure is rife at the authority that runs the airport); see also Carey Goldberg, Boston's Airport Security Is Described as Standard, N.Y. Times, Sept. 12, 2001, at A16 (stating that the type and frequency of security lapses at Logan was comparable to other U.S. airports). A second frequently-cited reason for the "failure" was problems within and among the law-enforcement and intelligence communities, such as internecine battles within the agencies and turf wars without, incompetence, and lack of agents able to translate intercepts of Arabic and Farsi communications. See Seymour M. Hersh, What Went Wrong: The C.I.A. and the Failure of American Intelligence, The New Yorker, Oct. 8, 2001, at 34 (describing problems within the C.I.A., particularly the small and decreasing number of intelligence operatives in the field, that prevented it from detecting and preventing the attacks of September 11); Walter Pincus, Committee: Terrorism Threat Is Long- Term; Agencies Advised To Collaborate More, Wash. Post, Sept. 20, 2001, at A33 (noting the "concern" in Washington, D.C., that "neither the FBI nor CIA has enough Arabic and Farsi translators for the enormous amounts of intelligence intercepts occurring around the world"); Peter Slevin, FBI Courts Arab, Muslim Communities: Agency Seeks Information, Easing of Old Tensions, Wash. Post, Sept. 19, 2001, at A14 (discussing the FBI's difficulty in gaining contacts within the Muslim and Arab-American communities and stating that "the infiltration of terror networks has proven far more difficult than even the puncturing of Soviet intelligence or Mafia families, particularly given a shortage of Arab American agents"); Tim Weiner & David Cay Johnston, Roadblocks Cited in Efforts to Trace Bin Laden's Money, N.Y. Times, Sept. 20, 2001, at A1 (citing as one reason the U.S. government failed to track and stop the flow of money between the terrorists was that the people within the U.S. intelligence agencies assigned the task were "generally incompetent" to handle it). . . . In addition, there are commentators who credit the perpetrators as much as criticize U.S. intelligence and law enforcement. See Hersh, supra; see also Stephen J. Hedges et al., FBI Probes 5th Flight for Hijackers: Plane Grounded on Day of Attack, Chi. Trib., Sept. 18, 2001, at 1 (describing evidence that the hijackers used computers at public libraries to avoid detection while communicating); Weiner, supra note 486 ("[American surveillance's] targets are hard men hiding in shadows and speaking in codes, against whom spy satellites, surveillance systems and smart bombs count for little."). Amid the news about the government's attempt to expand its wiretapping capabilities was the not-very-prominent disclosure of a highly classified internal investigation into alleged improprieties by the FBI in the investigations of the bombings of two United States' embassies in Tanzania and Saudi Arabia in 1998. See David Johnston & James Risen, Officials Say 2 More Jets May Have Been in the Plot, N.Y. Times, Sept. 19, 2001, at B1. According to a report appearing in the New York Times, the investigation was instigated by the chief judge of the Foreign Intelligence Surveillance Court (the court that administers warrants for surveillance orders under FISA), "apparently related to whether the [FBI] was seeking wiretaps under the [Foreign Intelligence Surveillance Act] on individuals without informing the court of a subject's status pending criminal investigations." Id.
578. The hijackings exposed how the security measures in place at American airports are poorly enforced. See Kate Zernike, Change Ahead for Troubled Boston Airport Agency, N.Y. Times, Sept. 21, 2001, at A14 (describing Logan Airport's history of security lapses and how sinecure is rife at the authority that runs the airport); see also Carey Goldberg, Boston's Airport Security Is Described as Standard, N.Y. Times, Sept. 12, 2001, at A16 (stating that the type and frequency of security lapses at Logan was comparable to other U.S. airports). A second frequently-cited reason for the "failure" was problems within and among the law-enforcement and intelligence communities, such as internecine battles within the agencies and turf wars without, incompetence, and lack of agents able to translate intercepts of Arabic and Farsi communications. See Seymour M. Hersh, What Went Wrong: The C.I.A. and the Failure of American Intelligence, The New Yorker, Oct. 8, 2001, at 34 (describing problems within the C.I.A., particularly the small and decreasing number of intelligence operatives in the field, that prevented it from detecting and preventing the attacks of September 11); Walter Pincus, Committee: Terrorism Threat Is Long-Term; Agencies Advised To Collaborate More, Wash. Post, Sept. 20, 2001, at A33 (noting the "concern" in Washington, D.C., that "neither the FBI nor CIA has enough Arabic and Farsi translators for the enormous amounts of intelligence intercepts occurring around the world"); Peter Slevin, FBI Courts Arab, Muslim Communities: Agency Seeks Information, Easing of Old Tensions, Wash. Post, Sept. 19, 2001, at A14 (discussing the FBI's difficulty in gaining contacts within the Muslim and Arab-American communities and stating that "the infiltration of terror networks has proven far more difficult than even the puncturing of Soviet intelligence or Mafia families, particularly given a shortage of Arab American agents"); Tim Weiner & David Cay Johnston, Roadblocks Cited in Efforts to Trace Bin Laden's Money, N.Y. Times, Sept. 20, 2001, at A1 (citing as one reason the U.S. government failed to track and stop the flow of money between the terrorists was that the people within the U.S. intelligence agencies assigned the task were "generally incompetent" to handle it). . . . In addition, there are commentators who credit the perpetrators as much as criticize U.S. intelligence and law enforcement. See Hersh, supra; see also Stephen J. Hedges et al., FBI Probes 5th Flight for Hijackers: Plane Grounded on Day of Attack, Chi. Trib., Sept. 18, 2001, at 1 (describing evidence that the hijackers used computers at public libraries to avoid detection while communicating); Weiner, supra note 486 ("[American surveillance's] targets are hard men hiding in shadows and speaking in codes, against whom spy satellites, surveillance systems and smart bombs count for little."). Amid the news about the government's attempt to expand its wiretapping capabilities was the not-very-prominent disclosure of a highly classified internal investigation into alleged improprieties by the FBI in the investigations of the bombings of two United States' embassies in Tanzania and Saudi Arabia in 1998. See David Johnston & James Risen, Officials Say 2 More Jets May Have Been in the Plot, N.Y. Times, Sept. 19, 2001, at B1. According to a report appearing in the New York Times, the investigation was instigated by the chief judge of the Foreign Intelligence Surveillance Court (the court that administers warrants for surveillance orders under FISA), "apparently related to whether the [FBI] was seeking wiretaps under the [Foreign Intelligence Surveillance Act] on individuals without informing the court of a subject's status pending criminal investigations." Id.
579. The hijackings exposed how the security measures in place at American airports are poorly enforced. See Kate Zernike, Change Ahead for Troubled Boston Airport Agency, N.Y. Times, Sept. 21, 2001, at A14 (describing Logan Airport's history of security lapses and how sinecure is rife at the authority that runs the airport); see also Carey Goldberg, Boston's Airport Security Is Described as Standard, N.Y. Times, Sept. 12, 2001, at A16 (stating that the type and frequency of security lapses at Logan was comparable to other U.S. airports). A second frequently-cited reason for the "failure" was problems within and among the law-enforcement and intelligence communities, such as internecine battles within the agencies and turf wars without, incompetence, and lack of agents able to translate intercepts of Arabic and Farsi communications. See Seymour M. Hersh, What Went Wrong: The C.I.A. and the Failure of American Intelligence, The New Yorker, Oct. 8, 2001, at 34 (describing problems within the C.I.A., particularly the small and decreasing number of intelligence operatives in the field, that prevented it from detecting and preventing the attacks of September 11); Walter Pincus, Committee: Terrorism Threat Is Long- Term; Agencies Advised To Collaborate More, Wash. Post, Sept. 20, 2001, at A33 (noting the "concern" in Washington, D.C., that "neither the FBI nor CIA has enough Arabic and Farsi translators for the enormous amounts of intelligence intercepts occurring around the world"); Peter Slevin, FBI Courts Arab, Muslim Communities: Agency Seeks Information, Easing of Old Tensions, Wash. Post, Sept. 19, 2001, at A14 (discussing the FBI's difficulty in gaining contacts within the Muslim and Arab-American communities and stating that "the infiltration of terror networks has proven far more difficult than even the puncturing of Soviet intelligence or Mafia families, particularly given a shortage of Arab American agents"); Tim Weiner & David Cay Johnston, Roadblocks Cited in Efforts to Trace Bin Laden's Money, N.Y. Times, Sept. 20, 2001, at A1 (citing as one reason the U.S. government failed to track and stop the flow of money between the terrorists was that the people within the U.S. intelligence agencies assigned the task were "generally incompetent" to handle it). . . . In addition, there are commentators who credit the perpetrators as much as criticize U.S. intelligence and law enforcement. See Hersh, supra; see also Stephen J. Hedges et al., FBI Probes 5th Flight for Hijackers: Plane Grounded on Day of Attack, Chi. Trib., Sept. 18, 2001, at 1 (describing evidence that the hijackers used computers at public libraries to avoid detection while communicating); Weiner, supra note 486 ("[American surveillance's] targets are hard men hiding in shadows and speaking in codes, against whom spy satellites, surveillance systems and smart bombs count for little."). Amid the news about the government's attempt to expand its wiretapping capabilities was the not-very-prominent disclosure of a highly classified internal investigation into alleged improprieties by the FBI in the investigations of the bombings of two United States' embassies in Tanzania and Saudi Arabia in 1998. See David Johnston & James Risen, Officials Say 2 More Jets May Have Been in the Plot, N.Y. Times, Sept. 19, 2001, at B1. According to a report appearing in the New York Times, the investigation was instigated by the chief judge of the Foreign Intelligence Surveillance Court (the court that administers warrants for surveillance orders under FISA), "apparently related to whether the [FBI] was seeking wiretaps under the
580. The hijackings exposed how the security measures in place at American airports are poorly enforced. See Kate Zernike, Change Ahead for Troubled Boston Airport Agency, N.Y. Times, Sept. 21, 2001, at A14 (describing Logan Airport's history of security lapses and how sinecure is rife at the authority that runs the airport); see also Carey Goldberg, Boston's Airport Security Is Described as Standard, N.Y. Times, Sept. 12, 2001, at A16 (stating that the type and frequency of security lapses at Logan was comparable to other U.S. airports). A second frequently-cited reason for the "failure" was problems within and among the law-enforcement and intelligence communities, such as internecine battles within the agencies and turf wars without, incompetence, and lack of agents able to translate intercepts of Arabic and Farsi communications. See Seymour M. Hersh, What Went Wrong: The C.I.A. and the Failure of American Intelligence, The New Yorker, Oct. 8, 2001, at 34 (describing problems within the C.I.A., particularly the small and decreasing number of intelligence operatives in the field, that prevented it from detecting and preventing the attacks of September 11); Walter Pincus, Committee: Terrorism Threat Is Long- Term; Agencies Advised To Collaborate More, Wash. Post, Sept. 20, 2001, at A33 (noting the "concern" in Washington, D.C., that "neither the FBI nor CIA has enough Arabic and Farsi translators for the enormous amounts of intelligence intercepts occurring around the world"); Peter Slevin, FBI Courts Arab, Muslim Communities: Agency Seeks Information, Easing of Old Tensions, Wash. Post, Sept. 19, 2001, at A14 (discussing the FBI's difficulty in gaining contacts within the Muslim and Arab-American communities and stating that "the infiltration of terror networks has proven far more difficult than even the puncturing of Soviet intelligence or Mafia families, particularly given a shortage of Arab American agents"); Tim Weiner & David Cay Johnston, Roadblocks Cited in Efforts to Trace Bin Laden's Money, N.Y. Times, Sept. 20, 2001, at A1 (citing as one reason the U.S. government failed to track and stop the flow of money between the terrorists was that the people within the U.S. intelligence agencies assigned the task were "generally incompetent" to handle it). . . . In addition, there are commentators who credit the perpetrators as much as criticize U.S. intelligence and law enforcement. See Hersh, supra; see also Stephen J. Hedges et al., FBI Probes 5th Flight for Hijackers: Plane Grounded on Day of Attack, Chi. Trib., Sept. 18, 2001, at 1 (describing evidence that the hijackers used computers at public libraries to avoid detection while communicating); Weiner, supra note 486 ("[American surveillance's] targets are hard men hiding in shadows and speaking in codes, against whom spy satellites, surveillance systems and smart bombs count for little."). Amid the news about the government's attempt to expand its wiretapping capabilities was the not-very-prominent disclosure of a highly classified internal investigation into alleged improprieties by the FBI in the investigations of the bombings of two United States' embassies in Tanzania and Saudi Arabia in 1998. See David Johnston & James Risen, Officials Say 2 More Jets May Have Been in the Plot, N.Y. Times, Sept. 19, 2001, at B1. According to a report appearing in the New York Times, the investigation was instigated by the chief judge of the Foreign Intelligence Surveillance Court (the court that administers warrants for surveillance orders under FISA), "apparently related to whether the [FBI] was seeking wiretaps under the [Foreign Intelligence Surveillance Act] on individuals without informing the court of a subject's status pending criminal investigations." Id.
581. The hijackings exposed how the security measures in place at American airports are poorly enforced. See Kate Zernike, Change Ahead for Troubled Boston Airport Agency, N.Y. Times, Sept. 21, 2001, at A14 (describing Logan Airport's history of security lapses and how sinecure is rife at the authority that runs the airport); see also Carey Goldberg, Boston's Airport Security Is Described as Standard, N.Y. Times, Sept. 12, 2001, at A16 (stating that the type and frequency of security lapses at Logan was comparable to other U.S. airports). A second frequently-cited reason for the "failure" was problems within and among the law-enforcement and intelligence communities, such as internecine battles within the agencies and turf wars without, incompetence, and lack of agents able to translate intercepts of Arabic and Farsi communications. See Seymour M. Hersh, What Went Wrong: The C.I.A. and the Failure of American Intelligence, The New Yorker, Oct. 8, 2001, at 34 (describing problems within the C.I.A., particularly the small and decreasing number of intelligence operatives in the field, that prevented it from detecting and preventing the attacks of September 11); Walter Pincus, Committee: Terrorism Threat Is Long- Term; Agencies Advised To Collaborate More, Wash. Post, Sept. 20, 2001, at A33 (noting the "concern" in Washington, D.C., that "neither the FBI nor CIA has enough Arabic and Farsi translators for the enormous amounts of intelligence intercepts occurring around the world"); Peter Slevin, FBI Courts Arab, Muslim Communities: Agency Seeks Information, Easing of Old Tensions, Wash. Post, Sept. 19, 2001, at A14 (discussing the FBI's difficulty in gaining contacts within the Muslim and Arab-American communities and stating that "the infiltration of terror networks has proven far more difficult than even the puncturing of Soviet intelligence or Mafia families, particularly given a shortage of Arab American agents"); Tim Weiner & David Cay Johnston, Roadblocks Cited in Efforts to Trace Bin Laden's Money, N.Y. Times, Sept. 20, 2001, at A1 (citing as one reason the U.S. government failed to track and stop the flow of money between the terrorists was that the people within the U.S. intelligence agencies assigned the task were "generally incompetent" to handle it). . . . In addition, there are commentators who credit the perpetrators as much as criticize U.S. intelligence and law enforcement. See Hersh, supra; see also Stephen J. Hedges et al., FBI Probes 5th Flight for Hijackers: Plane Grounded on Day of Attack, Chi. Trib., Sept. 18, 2001, at 1 (describing evidence that the hijackers used computers at public libraries to avoid detection while communicating); Weiner, supra note 486 ("[American surveillance's] targets are hard men hiding in shadows and speaking in codes, against whom spy satellites, surveillance systems and smart bombs count for little."). Amid the news about the government's attempt to expand its wiretapping capabilities was the not-very-prominent disclosure of a highly classified internal investigation into alleged improprieties by the FBI in the investigations of the bombings of two United States' embassies in Tanzania and Saudi Arabia in 1998. See David Johnston & James Risen, Officials Say 2 More Jets May Have Been in the Plot, N.Y. Times, Sept. 19, 2001, at B1. According to a report appearing in the New York Times, the investigation was instigated by the chief judge of the Foreign Intelligence Surveillance Court (the court that administers warrants for surveillance orders under FISA), "apparently related to whether the [FBI] was seeking wiretaps under the [Foreign Intelligence Surveillance Act] on individuals without informing the court of a subject's status pending criminal investigations." Id.
582. The hijackings exposed how the security measures in place at American airports are poorly enforced. See Kate Zernike, Change Ahead for Troubled Boston Airport Agency, N.Y. Times, Sept. 21, 2001, at A14 (describing Logan Airport's history of security lapses and how sinecure is rife at the authority that runs the airport); see also Carey Goldberg, Boston's Airport Security Is Described as Standard, N.Y. Times, Sept. 12, 2001, at A16 (stating that the type and frequency of security lapses at Logan was comparable to other U.S. airports). A second frequently-cited reason for the "failure" was problems within and among the law-enforcement and intelligence communities, such as internecine battles within the agencies and turf wars without, incompetence, and lack of agents able to translate intercepts of Arabic and Farsi communications. See Seymour M. Hersh, What Went Wrong: The C.I.A. and the Failure of American Intelligence, The New Yorker, Oct. 8, 2001, at 34 (describing problems within the C.I.A., particularly the small and decreasing number of intelligence operatives in the field, that prevented it from detecting and preventing the attacks of September 11); Walter Pincus, Committee: Terrorism Threat Is Long- Term; Agencies Advised To Collaborate More, Wash. Post, Sept. 20, 2001, at A33 (noting the "concern" in Washington, D.C., that "neither the FBI nor CIA has enough Arabic and Farsi translators for the enormous amounts of intelligence intercepts occurring around the world"); Peter Slevin, FBI Courts Arab, Muslim Communities: Agency Seeks Information, Easing of Old Tensions, Wash. Post, Sept. 19, 2001, at A14 (discussing the FBI's difficulty in gaining contacts within the Muslim and Arab-American communities and stating that "the infiltration of terror networks has proven far more difficult than even the puncturing of Soviet intelligence or Mafia families, particularly given a shortage of Arab American agents"); Tim Weiner & David Cay Johnston, Roadblocks Cited in Efforts to Trace Bin Laden's Money, N.Y. Times, Sept. 20, 2001, at A1 (citing as one reason the U.S. government failed to track and stop the flow of money between the terrorists was that the people within the U.S. intelligence agencies assigned the task were "generally incompetent" to handle it). . . . In addition, there are commentators who credit the perpetrators as much as criticize U.S. intelligence and law enforcement. See Hersh, supra; see also Stephen J. Hedges et al., FBI Probes 5th Flight for Hijackers: Plane Grounded on Day of Attack, Chi. Trib., Sept. 18, 2001, at 1 (describing evidence that the hijackers used computers at public libraries to avoid detection while communicating); Weiner, supra note 486 ("[American surveillance's] targets are hard men hiding in shadows and speaking in codes, against whom spy satellites, surveillance systems and smart bombs count for little."). Amid the news about the government's attempt to expand its wiretapping capabilities was the not-very-prominent disclosure of a highly classified internal investigation into alleged improprieties by the FBI in the investigations of the bombings of two United States' embassies in Tanzania and Saudi Arabia in 1998. See David Johnston & James Risen, Officials Say 2 More Jets May Have Been in the Plot, N.Y. Times, Sept. 19, 2001, at B1. According to a report appearing in the New York Times, the investigation was instigated by the chief judge of the Foreign Intelligence Surveillance Court (the court that administers warrants for surveillance orders under FISA), "apparently related to whether the [FBI] was seeking wiretaps under the [Foreign Intelligence Surveillance Act] on individuals without informing the court of a subject's status pending criminal investigations." Id.
583. The hijackings exposed how the security measures in place at American airports are poorly enforced. See Kate Zernike, Change Ahead for Troubled Boston Airport Agency, N.Y. Times, Sept. 21, 2001, at A14 (describing Logan Airport's history of security lapses and how sinecure is rife at the authority that runs the airport); see also Carey Goldberg, Boston's Airport Security Is Described as Standard, N.Y. Times, Sept. 12, 2001, at A16 (stating that the type and frequency of security lapses at Logan was comparable to other U.S. airports). A second frequently-cited reason for the "failure" was problems within and among the law-enforcement and intelligence communities, such as internecine battles within the agencies and turf wars without, incompetence, and lack of agents able to translate intercepts of Arabic and Farsi communications. See Seymour M. Hersh, What Went Wrong: The C.I.A. and the Failure of American Intelligence, The New Yorker, Oct. 8, 2001, at 34 (describing problems within the C.I.A., particularly the small and decreasing number of intelligence operatives in the field, that prevented it from detecting and preventing the attacks of September 11); Walter Pincus, Committee: Terrorism Threat Is Long- Term; Agencies Advised To Collaborate More, Wash. Post, Sept. 20, 2001, at A33 (noting the "concern" in Washington, D.C., that "neither the FBI nor CIA has enough Arabic and Farsi translators for the enormous amounts of intelligence intercepts occurring around the world"); Peter Slevin, FBI Courts Arab, Muslim Communities: Agency Seeks Information, Easing of Old Tensions, Wash. Post, Sept. 19, 2001, at A14 (discussing the FBI's difficulty in gaining contacts within the Muslim and Arab-American communities and stating that "the infiltration of terror networks has proven far more difficult than even the puncturing of Soviet intelligence or Mafia families, particularly given a shortage of Arab American agents"); Tim Weiner & David Cay Johnston, Roadblocks Cited in Efforts to Trace Bin Laden's Money, N.Y. Times, Sept. 20, 2001, at A1 (citing as one reason the U.S. government failed to track and stop the flow of money between the terrorists was that the people within the U.S. intelligence agencies assigned the task were "generally incompetent" to handle it). . . . In addition, there are commentators who credit the perpetrators as much as criticize U.S. intelligence and law enforcement. See Hersh, supra; see also Stephen J. Hedges et al., FBI Probes 5th Flight for Hijackers: Plane Grounded on Day of Attack, Chi. Trib., Sept. 18, 2001, at 1 (describing evidence that the hijackers used computers at public libraries to avoid detection while communicating); Weiner, supra note 486 ("[American surveillance's] targets are hard men hiding in shadows and speaking in codes, against whom spy satellites, surveillance systems and smart bombs count for little."). Amid the news about the government's attempt to expand its wiretapping capabilities was the not-very-prominent disclosure of a highly classified internal investigation into alleged improprieties by the FBI in the investigations of the bombings of two United States' embassies in Tanzania and Saudi Arabia in 1998. See David Johnston & James Risen, Officials Say 2 More Jets May Have Been in the Plot, N.Y. Times, Sept. 19, 2001, at B1. According to a report appearing in the New York Times, the investigation was instigated by the chief judge of the Foreign Intelligence Surveillance Court (the court that administers warrants for surveillance orders under FISA), "apparently related to whether the [FBI] was seeking wiretaps under the [Foreign Intelligence Surveillance Act] on individuals without informing the court of a subject's status pending criminal investigations." Id.
584. The hijackings exposed how the security measures in place at American airports are poorly enforced. See Kate Zernike, Change Ahead for Troubled Boston Airport Agency, N.Y. Times, Sept. 21, 2001, at A14 (describing Logan Airport's history of security lapses and how sinecure is rife at the authority that runs the airport); see also Carey Goldberg, Boston's Airport Security Is Described as Standard, N.Y. Times, Sept. 12, 2001, at A16 (stating that the type and frequency of security lapses at Logan was comparable to other U.S. airports). A second frequently-cited reason for the "failure" was problems within and among the law-enforcement and intelligence communities, such as internecine battles within the agencies and turf wars without, incompetence, and lack of agents able to translate intercepts of Arabic and Farsi communications. See Seymour M. Hersh, What Went Wrong: The C.I.A. and the Failure of American Intelligence, The New Yorker, Oct. 8, 2001, at 34 (describing problems within the C.I.A., particularly the small and decreasing number of intelligence operatives in the field, that prevented it from detecting and preventing the attacks of September 11); Walter Pincus, Committee: Terrorism Threat Is Long- Term; Agencies Advised To Collaborate More, Wash. Post, Sept. 20, 2001, at A33 (noting the "concern" in Washington, D.C., that "neither the FBI nor CIA has enough Arabic and Farsi translators for the enormous amounts of intelligence intercepts occurring around the world"); Peter Slevin, FBI Courts Arab, Muslim Communities: Agency Seeks Information, Easing of Old Tensions, Wash. Post, Sept. 19, 2001, at A14 (discussing the FBI's difficulty in gaining contacts within the Muslim and Arab-American communities and stating that "the infiltration of terror networks has proven far more difficult than even the puncturing of Soviet intelligence or Mafia families, particularly given a shortage of Arab American agents"); Tim Weiner & David Cay Johnston, Roadblocks Cited in Efforts to Trace Bin Laden's Money, N.Y. Times, Sept. 20, 2001, at A1 (citing as one reason the U.S. government failed to track and stop the flow of money between the terrorists was that the people within the U.S. intelligence agencies assigned the task were "generally incompetent" to handle it). . . . In addition, there are commentators who credit the perpetrators as much as criticize U.S. intelligence and law enforcement. See Hersh, supra; see also Stephen J. Hedges et al., FBI Probes 5th Flight for Hijackers: Plane Grounded on Day of Attack, Chi. Trib., Sept. 18, 2001, at 1 (describing evidence that the hijackers used computers at public libraries to avoid detection while communicating); Weiner, supra note 486 ("[American surveillance's] targets are hard men hiding in shadows and speaking in codes, against whom spy satellites, surveillance systems and smart bombs count for little."). Amid the news about the government's attempt to expand its wiretapping capabilities was the not-very-prominent disclosure of a highly classified internal investigation into alleged improprieties by the FBI in the investigations of the bombings of two United States' embassies in Tanzania and Saudi Arabia in 1998. See David Johnston & James Risen, Officials Say 2 More Jets May Have Been in the Plot, N.Y. Times, Sept. 19, 2001, at B1. According to a report appearing in the New York Times, the investigation was instigated by the chief judge of the Foreign Intelligence Surveillance Court (the court that administers warrants for surveillance orders under FISA), "apparently related to whether the [FBI] was seeking wiretaps under the [Foreign Intelligence Surveillance Act] on individuals without informing the court of a subject's status pending criminal investigations." Id.
585. See Weiner, supra note 486 (citing an intelligence expert as recently saying that "American intelligence was in disarray, drowning under a tidal wave of technology, harried by short-term military tasks, [and] short on brain power").
586. Professor Amsterdam placed greater faith in administrative rulemaking to correct the ills of the Fourth Amendment practice than in legislation by the Congress. See Amsterdam, supra note 290, at 378-79. As Professor Amsterdam stated, Nor do I ignore the possibility of controlling that ["enormous range of police"] power [that "stands unrestrained"] and restraining its abuses by subconstitutional law. I only wish that the possibility might become a reality. But our fondest hopes must be tempered by a little common sense. The long-time, wholesale "legislative default" in regulating police practices is no accident. Legislatures have not been, are not now, and are not likely to become sensitive to the concern of protecting persons under investigation by the police. Id.
587. Id. at 418.
588. Id. at 418-19.
589. Id. at 419. See supra notes 481-85 and accompanying text for discussion of how rulemaking would improve police practices.
590. Amsterdam, supra note 290, at 422. As discussed above, the Supreme Court's reliance on the warrant's probable-cause requirement to ensure the reasonableness of a search or seizure has led the Court to contort its Fourth Amendment jurisprudence and allow practices which are clearly searches or seizures, but which would never meet the probable-cause standard. See supra notes 477-78 and accompanying text.
591. See supra notes 135, 341-44 and accompanying text.
592. As Senator Sam Ervin, chair of the Senate Subcommittee on Constitutional Rights, stated in 1974: The Founding Fathers knew well that with power comes the ability to do harm. The fundamentals of our constitutional system require us always to ensure that governmental power is sufficiently constrained by law so that as much as is humanly possible the power of government is used for good alone, and that our nation continues to have a government subject to the people, and not the reverse. We have slowly come to the realization that this is true no less for information practices as it is for other of Government's activities. Sam J. Ervin, Jr., Preface to 1 Federal Data Banks and Constitutional Rights, supra note 23, at III.
593. Morrison v. Olson, 487 U.S. 654, 727 (1988) (Scalia, J., dissenting).
594. The robust existence of the "administrative state," in which difficult or complex issues are delegated to expert and insulated agencies, raises concerns about the efficacy of political practice as an adequate assurance that law enforcement conduct clandestine surveillance within the confines of constitutional strictures. See Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto Ins., 463 U.S. 29, 48 (1983) ("Expert discretion is the lifeblood of the administrative process, but unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion." (internal quotations omitted) (quoting Burlington Truck Lines, Inc., v. United States, 371 U.S. 156, 167 (1962))); E. Donald Elliot, INS v. Chadha: The Administrative Constitution, the Constitution, and the Legislative Veto, 1983 Sup. Ct. Rev. 125, 169-75 (describing how the rise of the administrative state has transformed the three-branch constitutional system originally established). As Professor Elliot states: The United States has at least one other "constitution (with a lower-case 'c')," which we might call the "constitution of the administrative state." Its functions are to provide structure and control over the enormous array of federal departments, independent commissions, agencies, government corporations, banks, boards, committees, and quasi-official agencies and authorities that now exercise power to make law in various forms. . . . Together the constitution of the administrative state creates a system of law by which government instrumentalities are supposedly controlled and managed. Id. at 169-70. Another commentator, discussing the Financial Crimes Enforcement Network ("FinCEN"), observed: "What dangers arise when an entrenched bureaucratic agency controls powerful, largely invisible technologies? The chief concern, perhaps, is that bureaucracies have little incentive to regulate themselves. . . . FinCEN is largely cabined off from the political process." See Bercu, supra note 96, at 403.
595. Cf. Talmadge, supra note 430. Judge Talmadge notes that "[t]he self-corrective feature of democratic government is a significant check on governmental abuse, and is often overlooked by advocates of greater constitutional limits on the police power." Id. at 907. While Judge Talmadge's notion has appeal in the context of the infringement of property rights by abuses of police powers, it is less clear that reliance on this "self-corrective feature of democratic government" is a sufficient safeguard against sophisticated modern electronic surveillance techniques and technologies, which by their very essence are hidden from view and therefore beyond the range of the public and therefore democratic self-correction. See supra note 499.
596. See Freeh, supra note 425, at 14;
597. see also 1 Fishman & McKenna, supra note 24, § 1:1, at 1-3 (referencing Nazi Germany and the Soviet Union and noting that "[t]he Watergate scandal . . . should suffice to destroy any illusions that the United States is somehow inherently immune from the misuse of these techniques");
598. Diffie & Landau, supra note 20, at 4 ("Totalitarian regimes have given us abundant evidence that the use of wiretaps and even the fear of their use can stifle free speech. Nor is the political use of electronic surveillance a particularly remote problem - the Watergate scandal is only the most recent example in contemporary American history for its use by the party in power in its attempts to stay in power.").