First Principles of Communications Privacy

Abstract

¶1 Recent clashes among administration officials intent on rooting out terrorism and those who decry intrusions on personal privacy have raised questions about the constitutional regulation of electronic surveillance. For example, the NSA recently claimed that the president’s inherent powers under Article II justified its domestic wiretapping program. A district court in Detroit disagreed, and determined that the program violated the First and Fourth Amendments and separation of powers.1 ¶2 Yet when it comes to challenges to electronic surveillance for law enforcement purposes, the cases have largely involved interpretations of the Electronic Communications Privacy Act (ECPA), a law passed in 1986 to bring surveillance regulation into the age of electronic communications.2 Since the Supreme Court delineated what procedural safeguards the Fourth Amendment imposed on traditional wiretapping, back in the 1967 cases of Katz v. United States3 and Berger v. New York,4 courts have avoided subjecting questions about modern electronic surveillance practices to constitutional scrutiny. In Katz and Berger, the Supreme Court established that electronic eavesdropping constituted a Fourth Amendment search. Because of the particular dangers of abusing electronic surveillance, the Court required that agents who wanted to conduct it had to surmount several procedural hurdles significantly more demanding than the probable cause warrant needed to search a home.5 Congress incorporated those hurdles into the Wiretap Act that it passed the next year.6 ¶3 But the Supreme Court has stayed out of the regulation of modern electronic surveillance as use of the internet and related electronic communications has supplanted use of the telephone. Lower courts have avoided constitutional review as well. In fact, a case currently pending in the Sixth Circuit, Warshak v. United States,7 poses the first constitutional challenge to the Stored Communications Act, (SCA), which was passed in 1986 as a subset of the ECPA.8 No Article III