The slow pace of Fourth Amendment change
In Protections for Electronic Communications: the Stored Communications Act and the Fourth Amendment, Alexander Scolnik wrote:
As technology evolves, giving individuals new forms of communicating and government agents increasingly sophisticated tools for surveillance, courts have had to continually interpret the Fourth Amendment and define the extent of its reach in light of these new advances.
The Fourth Amendment: from property to people
For the Fourth Amendment – the prohibition against unreasonable search and seizure – one of these foundational cases was Entick v. Carrington (1765). It was not until Katz in 1965 that the Supreme Court returned to the tradition of ex Parte Jackson and held that “the Fourth Amendment protects people, not places.”
Constitutionalizing the sanctity of the mails
Anuj C. Desai explains that the extension of the Fourth Amendment to cover postal mail, and then later to telephones, is based not so much on the inherently Constitutional nature of opening mail, but instead on the increasingly firm belief in the sanctity of the mail as expressed by Congress, legislators, and the public.
Law of privacy vs. confidentiality in the nineteenth century
According to Richards and Solove the “right to privacy” as we now understand it actually grew out of an earlier recognition of the right to confidentiality in certain situations. Warren and Brandeis then took this original principle of confidentiality and shifted it to focus on a newly developed right to privacy.
The telegraph and business invasions of privacy
In the late 19th century, many began to see the rise of monopolistic telegraph operators as more of a threat than the government. Against this potential eavesdropper, the Bill of Rights provided no protection.
Stepping stone to Internet privacy: the telegraph
There have been four pivotal technologies that have forced modern American law and society to re-examine its notions of privacy and confidentiality.
Changing technology, changing expectations of privacy
My goal here is to compare and contrast the legal changes that occurred as new technologies – state-run postal services, the telegraph, the telephone, and email, for example – emerged, and through this to seek insight into these larger questions.
The Stored Communications Act and you
It’s always good to remember that storing your email on someone else’s server is a potential problem.
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