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The long-forgotten “mere evidence” rule
The “mere evidence” rule, forbidding searches for documents that were themselves not “instrumentalities” crimes (or contraband themselves) lasted well into the twentieth century before being abandoned. So why were telegrams never explicitly covered by the rule?
April 2011 / 3 min.
An argument for the “Inviolability of Telegraphic Correspondence”
Former Michigan Supreme Court Justice Thomas M. Cooley, in a forward-looking article, advocated for extending Fourth Amendment protections to telegrams in 1879. Cooley articulated a position that both foreshadowed 20th century arguments over telephone wiretaps, and reflected his late 19th century concerns.
April 2011 / 5 min.
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.
April 2011 / 2 min.
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.”
April 2011 / 4 min.
Working around the rules to give you movies on demand
David Pogue writes about a new startup that’s trying to work around the limitations media companies have placed on movie providers like Netflix and Redbox.
March 2011 / 3 min.
What was the “right to privacy” in 1948?
It took nearly 50 years for Justice Brandeis’ ground-breaking law review article on the right to privacy to begin to widely influence judicial decisions. By 1948, though, a dozen or so states had begun to recognize the right as a part of common law.
March 2011 / 3 min.
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.
February 2011 / 2 min.
New technologies lead to new constitutional protections
The boom in transportation and communications technologies in the nineteenth century outpaced the pace of legal change. It was only through the emergence of new concerns around both privacy and confidentiality that people themselves began to realize their importance in a way never before imagined.
February 2011 / 3 min.
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.
February 2011 / 3 min.
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.
February 2011 / 3 min.