A. Michael Froomkin
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429. See Memorandum from Robert D. Poling, Specialist in American Public Law, American Law Division, Congressional Research Service 2-5 (Oct. 4, 1994) (discussing current legal authority to mandate private use of the Clipper Chip, and noting that, although the Computer Security Act allows the government to set cryptographic standards for its computers, this authority applies only to the federal government's computer systems and not to civilian computer systems) (on file with author). Back to text
430. Olmstead v. United States, 277 U.S. 438, 474 (1928) (Brandeis, J., dissenting). Back to text
431. Trusted Information Systems has proposed a software key escrow protocol to NIST. See Telephone Interview with David Balenson, Senior Computer Scientist, Trusted Information Systems (June 10, 1994).
Some of the constitutional questions discussed below arguably might be avoided by focusing on standing. It might be said that because the chip (or commercial software) is produced by a corporation, and it is the corporation that is required to give the government the keys, the ultimate user thus lacks standing to complain (and, in some cases, the corporation lacks the rights enjoyed by natural persons). Because, however, much encryption occurs in software rather than hardware, and software typically generates new session keys for each communication, and these keys would not ordinarily be escrowed but for the legislation, the discussion in the text assumes that it is the end-user, whether a person or a corporation, who will have to give the government the information it seeks.
For ease of exposition, the text uses the phrase "chip key" to refer to any unique identifying key that allows LEAF-like access to a session key, whether the "chip key" is implemented in hardware or software. Back to text
432. The right to privacy also derives from the Third and Ninth Amendments. See Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965) (describing how the Third and Ninth Amendments create "zones of privacy"). This Article does not discuss the claim that the Second Amendment protects cryptography. That argument gains some force from the ITAR's classification of cryptography as a "munition," although the extent to which an administrative classification should have constitutional implications is certainly debatable. The topic would, however, require a discussion of the federal power to regulate weaponry that is beyond the scope of this Article. Back to text
433. U.S. Const. amend. I. Back to text
434. See generally Laurence H. Tribe, American Constitutional Law § 12-1 (2d ed. 1988) (discussing whether freedom of speech is a means to some end or is an end in itself). For the view that the most important function of the First Amendment is to promote and protect democracy, see Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1972). Back to text
435. Whether mandatory key escrow is compelled speech does not turn on how the government gets the keys. Although under EES the keys are provided to the government before the user buys the product, the user is still forced to send a LEAF to use the encryption. Similarly, with software encryption, users will be required to communicate the session key to the government in some fashion. Back to text
436. See Riley v. National Fed'n of the Blind, 487 U.S. 781, 795 (1988) ("Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech."). Thus, compelled disclosures of fact enjoy the same protection as the com-pelled expressions of opinion in Wooley v. Maynard, 430 U.S. 705, 713 (1977) (hold-ing that requiring cars to display license plates bearing New Hampshire's state motto is unconstitutional), and West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943) (holding that compelling individuals to recite the pledge of allegiance and salute the flag violates the First Amendment). But see R. George Wright, Free Speech and the Mandated Disclosure of Information, 25 U. Rich. L. Rev. 475, 496 (1991) (arguing that a less stringent standard would have been more appropriate in Riley). Back to text
437. See Riley, 487 U.S. at 798. Back to text
438. 430 U.S. 705 (1977). Back to text
439. Id. at 713. Back to text
440. See id. at 720 (Rehnquist, J., dissenting) (stating that citizens are not "forced to affirm or reject that motto"). Back to text
441. In addition to Wooley, these include Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974) (holding unconstitutional a state law requiring newspapers to provide a right of reply to political candidates), and Barnette, 319 U.S. at 642 (finding a compulsory flag salute and recital of the pledge of allegiance unconstitutional). Back to text
442. Buckley v. Valeo, 424 U.S. 1, 64 (1976) (citations omitted); see also Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 546 (1963) (holding that disclosure of membership lists requires a "substantial relation between the information sought and a . . . compelling state interest"). Back to text
443. This was the issue in Riley v. National Fed'n of the Blind, 487 U.S. 781, 781 (1988). Back to text
444. The Supreme Court described the protection of national security as a compelling state interest in Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964) ("That Congress . . . has power to safeguard our Nation's security is obvious and unarguable."). See generally Developments in the Law--The National Security Interest and Civil Liberties, 85 Harv. L. Rev. 1130 (1972) (surveying whether national security claims justify the use of secrecy, surveillance, and emergency police powers). But see National Fed'n of Fed. Employees v. Greenberg, 789 F. Supp. 430, 436 (D.D.C. 1992) ("[S]ecurity concerns do not, under the American system of ordered liberty, ipso facto override all constitutional and privacy considerations. The purpose of national security is to protect American citizens, not to overwhelm their rights."), vacated, 983 F.2d 286 (D.C. Cir. 1993). Back to text
445. See Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989) (noting that regulation is not narrowly tailored when a substantial portion of the burden on speech does not advance the state's content-neutral goals). Back to text
446. The Supreme Court's practice of balancing constitutional rights against public needs has attracted considerable criticism. For a survey of the issues, see Symposium, [**PAGE 815**]When Is a Line as Long as a Rock Is Heavy?: Reconciling Public Values and Individual Rights in Constitutional Adjudication, 45 Hastings L.J. 707 (1994). Back to text
447. See Tribe, supra note 434, § 12-24 (discussing the "public forum" freedom of speech doctrine). Back to text
448. Scheppele, supra note 1, at 302; see also Shoshana Zuboff, In the Age of the Smart Machine: The Future of Work and Power 344-45 (1988) (describing the phenomenon of "anticipatory conformity" among persons who believe they are being observed). Back to text
449. See Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2459-62 (1994) (holding that a must-carry provision that distinguished between speakers solely by the technical means used to carry speech is not a content-based restriction); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) (allowing reasonable time, place, and manner restrictions on speech, provided such restrictions are not content-based); City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (describing an antisign ordinance as content-neutral); Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 648-49 (1981) (holding a time, place, and manner regulation on all solicitations at a state fair to be content-neutral).
The act of disclosing the key might be viewed as compelled speech, in which case the compulsion would be subjected to strict scrutiny. See supra part III.A.1. Merely recording public information may not rise to the level of a chilling effect on speech. The Ninth Circuit rejected a Free Exercise challenge to warrantless government tape recordings of public church services at which parishioners discussed smuggling Central Americans into Arizona. See United States v. Aguilar, 883 F.2d 662, 694-96 (9th Cir. 1989), cert. denied, 498 U.S. 1046 (1991). Aguilar is inapposite, however, because the chip key is not public. Back to text
450. See generally David S. Day, The Incidental Regulation of Free Speech, 42 U. Miami L. Rev. 491 (1988) (discussing the development of the less-exacting incidental regulation doctrine for examining free speech concerns); Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46 (1987) (exploring the nature of content-neutral review); Ned Greenberg, Note, Mendelsohn v. Meese: A First Amendment [**PAGE 816**]Challenge to the Anti-Terrorism Act of 1987, 39 Am. U. L. Rev. 355, 369 (1990) (distinguishing between regulations that incidentally restrict speech, which are subject to a lower level of scrutiny, and those that directly curtail speech, which are subject to a higher level of scrutiny). Back to text
451. See City of Ladue v. Gilleo, 114 S. Ct. 2038, 2046 (1994) (applying the balancing test); Clark, 468 U.S. at 293 (same); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 535 (1980) (same); Tribe, supra note 434, § 12-23, at 979 (stating that the Supreme Court's balancing test examines "the degree to which any given inhibition . . . falls unevenly upon various groups").
The discussion in the text assumes that a court would not find that mandatory key escrow has shut down a traditional public forum. Although mandatory key escrow most severely affects private conversation, it also affects USENET--which may be a public forum or, in universities, at least, a series of linked public fora--and other bulletin board services which may be considered private fora, cf. Allen S. Hammond, IV, Regulating Broadband Communications Networks, 9 Yale J. Reg. 181, 219 (1992) (including "certain subscription technologies" within the definition of private fora), by making anonymous posting of messages less secure. If a court were to find that mandatory key escrow seriously inhibited a traditional public forum, the court would likely find the statute unconstitutional. See Tribe, supra note 434, § 12-24, at 987 (noting that the designation "public forum" serves as "shorthand for the recognition that a particular context represents an important channel of communication in the system of free expression"). Back to text
452. On the use of computers for political speech, see Eric C. Jensen, Comment, An Electronic Soapbox: Computer Bulletin Boards and the First Amendment, 39 Fed. Comm. L.J. 217, 218-24 (1987) (noting that the growth of various types of computer bulletin boards "`brings back the era of the pamphleteer'" (quoting Lee Dembart, The Law Versus Computers: A Confounding Terminal Case, L.A. Times, Aug. 11, 1985, at D3)). Leaving aside the special case of anonymous speech, discussed below, see infra part III.A.3, the extent to which encrypted speech (for example, on Clipper telephones) is likely to be chilled is an empirical question on which it would be difficult to collect evidence. It is hard to measure how many people will not use encrypted telephones or e-mail if they are not confident the system is secure. It is harder still to measure how their speech changes as a result. A court considering this issue is likely to assume that the government will act legally and decrypt EES communications only when authorized. Courts are unlikely to accept that reasonable people might disagree, although whether they would, and how much, is the central empirical question. Back to text
453. See Tribe, supra note 434, § 12-23, at 979-80 (describing how the Court seeks [**PAGE 817**]to avoid upholding communicative limits with a disproportionate impact on the poor, because the poor have the fewest alternative communication channels). Back to text
454. City of Ladue, 114 S. Ct. at 2045 n.13 (1994) (quoting Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 58 (1987)); see also Wayte v. United States, 470 U.S. 598, 611 (1985) (noting that part of the test is whether an "incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest" (quoting United States v. O'Brien, 391 U.S. 367, 377 (1968))). Back to text
455. Perhaps as a result, in a recent First Amendment case no five justices were able to agree on a disposition, even though the Court unanimously agreed that the intermediate standard applied. See Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2475 (Stevens, J., concurring in part and concurring in judgment) (voting to remand so that five justices would agree on a disposition of the appeal, despite his belief that the Court should affirm). See generally T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943 (1987) (discussing the implications of Supreme Court "balancing"). Back to text
456. William Shakespeare, Love's Labour's Lost act 5, sc. 2, ll. 228-29 (Richard David ed., 1956). Back to text
457. Tribe, supra note 434, § 12-26, at 1019; see also Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 91 (1982) ("The Constitution protects against the compelled disclosure of political associations and beliefs."); Gilmore v. City of Montgomery, 417 U.S. 556, 575 (1974) (noting that the right to associate freely promotes democracy); NAACP v. Button, 371 U.S. 415, 431 (1963) (refusing to permit compelled disclosure of political affiliation); Talley v. California, 362 U.S. 60, 65 (1960) (striking down a statute forbidding distribution of anonymous handbills); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958) (warning that forced disclosure of affiliation with certain groups may inhibit freedom of association). Back to text
458. Hynes v. Mayor of Oradell, 425 U.S. 610, 628 (1976) (Brennan, J., concurring in part). Back to text
459. See Bates v. City of Little Rock, 361 U.S. 516, 522-24 (1960) (holding, on freedom of assembly grounds, that the NAACP did not have to disclose its [**PAGE 818**]membership lists). Back to text
460. See Timothy C. May, The Cyphernomicon §§ 2.9, 8.5 (Sept. 10, 1994), available online URL ftp://ftp.netcom.com/pub/tc/ tcmay/cyphernomicon. A hypertext ver-sion of this document is available from URL: http://www.apocalypse.org/pub/nelson/bin.cgi/ cypernomicon. Back to text
461. See id. § 8.5. Back to text
462. See, e.g., Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 91 (1982) (holding that the "Constitution protects against the compelled disclosure of political associations"); Hynes, 425 U.S. at 623 (Brennan, J., concurring in part) (asserting that a disclosure requirement puts an impermissible burden on political expression); Shelton v. Tucker, 364 U.S. 479, 485-87 (1960) (holding invalid a statute that compelled teachers to disclose associational ties because it deprived them of their right of free association); Talley v. California, 362 U.S. 60, 64-65 (1960) (voiding an ordinance that compelled the public identification of group members engaged in the dissemination of ideas); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958) ("It is hardly a novel perception that compelled disclosure of affiliation with groups [**PAGE 819**]engaged in advocacy may constitute . . . restraint on freedom of association . . . ."); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 145 (1951) (Black, J., concurring) (expressing the fear that dominant groups might suppress unorthodox minorities if allowed to compel disclosure of associational ties). But see Communist Party of the United States v. Subversive Activities Control Bd., 367 U.S. 1, 85 (1961) (declining to decide whether forced disclosure of the identities of Communist Party members was an unconstitutional restraint on free association); New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 77 (1928) (holding that a required filing of group members' names with the state constituted a legitimate exercise of police power). Back to text
463. Patterson, 357 U.S. at 462. Back to text
464. See Brown, 459 U.S. at 91-92; see also Buckley v. Valeo, 424 U.S. 1, 143 (1976) (upholding compulsory disclosure to FEC of names of persons donating more than $10 to campaigns, and public disclosure of contributors of over $100); Griset v. Fair Political Practices Comm'n, 884 P.2d 116, 126 (Cal. 1994) (upholding state statute banning political candidates from sending anonymous mass political mailings). In McIntyre v. Ohio Elections Comm'n, 618 N.E.2d 152, 156 (Ohio 1993), cert. granted, 114 S. Ct. 1047 (1994), the Ohio Supreme Court let stand a state statute forbidding the circulation of anonymous leaflets pertaining to the adoption or defeat of a ballot issue. Back to text
465. Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 544 (1987); see also New York State Club Ass'n v. City of New York, 487 U.S. 1, 13 (1988) (stating that freedom of expression is a powerful tool used in the exercise of First Amendment rights); Roberts v. United States Jaycees, 468 U.S. 609, 617-19 (1984) (recognizing that an individual's First Amendment rights are not secure unless those rights may be exercised in the group context as well); Moore v. City of E. Cleveland, 431 U.S. 494, 503-04 (1977) (plurality opinion) (citing examples of intimate association). Back to text
466. 481 U.S. 537 (1987). Back to text
467. Id. at 544-45, 547. Back to text
468. See id. at 548 (stating that the protections of the First Amendment imply a right [**PAGE 820**]to associate); see also Citizens Against Rent Control/ Coalition for Fair Hous. v. City of Berkeley, 454 U.S. 290, 299 (1981) (holding an ordinance limiting the amount of money that may be contributed to certain political organizations to be an impermissible restraint on free association). Back to text
469. 424 U.S. 1, 74 (1976). Back to text
470. 459 U.S. 87, 88 (1982). Back to text
471. Id. at 99-101 (describing "massive" harassment of the Socialist Workers Party by the FBI). Back to text
472. See City of Ladue v. Gilleo, 114 S. Ct. 2038, 2046 (1994) (holding that flyers are not a substitute for cheap and convenient signs in front of a house). Back to text
473. 618 N.E.2d 152 (Ohio 1993), cert. granted 114 S. Ct. 1047 (1994). Back to text
474. Similar questions arose in Griset v. Fair Political Practices Comm'n, 884 P.2d 116, 126 (Cal. 1994) (upholding the constitutionality of a state ban on anonymous political mailings). Back to text
475. The parallel to mandatory key escrow is imperfect because antimask laws owe their existence to efforts to curb a specific group, the Ku Klux Klan, see Oskar E. Rey, Note, Antimask Laws: Exploring the Outer Bounds of Protected Speech Under the First Amendment--State v. Miller, 260 Ga. 669, 398 S.E.2d 547 (1990), 66 Wash. L. Rev. 1139, 1145 (1991), rather than a more generalized desire to catch criminals. The existence of a specific animus aimed at one group may itself be a First Amendment violation. See infra note 478 (listing cases in which courts expressed disapproval of antimask laws on free speech grounds). Furthermore, most reported cases have concentrated on whether mask-wearing constitutes symbolic speech rather than on the associational freedom claims that would most likely be the centerpiece of a First Amendment challenge to any mandatory key escrow plan. Back to text
476. See Wayne R. Allen, Note, Klan, Cloth and Constitution: Anti-Mask Laws and the First Amendment, 25 Ga. L. Rev. 819, 821 n.17 (1991) (citing statutes from 10 states); Rey, supra note 475, at 1144 n.43 (citing additional statutes). A related type of antimask statute makes it a part of the offense to intend to interfere with the civil rights of another. See Allen, supra at 821 n.16. Additionally, 18 U.S.C. § 241 makes it a felony for two or more persons to go in disguise on public highways or on the premises of another with the intent to prevent the free exercise and enjoyment of any legal right or privilege by another citizen. See 18 U.S.C. § 241 (1988). Back to text
477. See Allen, supra note 476, at 828-29. Back to text
478. Compare State v. Miller, 398 S.E.2d 547, 553 (Ga. 1990) (rejecting challenge to antimask statute) and Walpole v. State, 68 Tenn. 370, 372-73 (1878) (same) and Hernandez v. Commonwealth, 406 S.E.2d 398, 401 (Va. Ct. App. 1991) (same) with Hernandez v. Superintendent, 800 F. Supp. 1344, 1351 n.14 (E.D. Va. 1992) (noting that the statute might have been held unconstitutional if petitioner had demonstrated that unmasking himself would have restricted his ability to enjoy free speech and freedom of association) and Aryan v. Mackey, 462 F. Supp. 90, 91 (N.D. Tex. 1978) (granting temporary restraining order preventing enforcement of antimask law against Iranian students demonstrating against Shah) and Ghafari v. Municipal Court, 150 Cal. Rptr. 813, 819 (Cal. Ct. App. 1978) (holding statute prohibiting wearing masks in public overbroad and finding that state's fear that violence will result from the mere presence of anonymous persons is "unfounded"); compare also Allen, supra note 476, at 829-30 (arguing for the validity and retention of antimask laws) with Rey, supra note 475, at 1145-46 (arguing antimask laws are unconstitutional). One way to describe the cases cited above, of course, is that the KKK loses, but Iranian students win. Back to text
479. See Miller, 398 S.E.2d at 551. Back to text
480. Compare Aryan, 462 F. Supp. at 93-94 (requiring concrete evidence supporting the prediction that violence will occur) with Miller, 398 S.E.2d at 580 (accepting history of violence as sufficient evidence). Back to text
481. 357 U.S. 449 (1958). Back to text
482. The Supreme Court of Georgia rejected an associational freedom argument presented by the KKK in Miller. See 398 S.E. 2d at 552-53. Relying on associational freedom, Judge Higginbotham granted a temporary restraining order preventing enforcement of an antimask law against Iranian students in Aryan. See 462 F. Supp. [**PAGE 823**]at 92-94. Back to text
483. U.S. Const. amend. IV. Back to text
484. See California v. Greenwood, 486 U.S. 35, 40 (1988) (holding that the Fourth Amendment does not prohibit a warrantless search and seizure of garbage left for trash collection); see also United States v. Scott, 975 F.2d 927, 928-30 (1st Cir. 1992) (holding that the warrantless seizure and reconstruction of 5/32-inch pieces of shredded documents in the trash did not violate the Fourth Amendment), cert. denied, 113 S. Ct. 1877 (1993); United States v. Comeaux, 955 F.2d 586, 589 (8th Cir.) (permitting a warrantless search of garbage within the curtilage of the home because the garbage was readily accessible to the public), cert. denied, 113 S. Ct. 135 (1992); United States v. Hedrick, 922 F.2d 396, 400 (7th Cir.) (same) cert. denied, 112 S. Ct. 147 (1991). Back to text
485. See Smith v. Maryland, 442 U.S. 735, 743 (1979) (holding that the installation and use of a pen register by a telephone company does not constitute a search within the meaning of the Fourth Amendment). The rationale is that because people are aware that the telephone company keeps this information for billing purposes, they cannot reasonably expect that the information will be kept secret. See id. at 742. This is neither necessarily true, nor timelessly true, nor beyond the ability of persons and service providers to change by contract, but it is still the rule. Back to text
486. See Florida v. Riley, 488 U.S. 445, 451-52 (1989) (plurality opinion) (holding valid a warrantless aerial surveillance of a greenhouse from four hundred feet); see also California v. Ciraolo, 476 U.S. 207, 215 (1986) (holding valid a warrantless aerial surveillance of a yard enclosed by a 10-foot fence). Back to text
487. See Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986) (holding that [**PAGE 824**]warrantless aerial photography of a factory taken with a commercial camera from navigable airspace does not violate the Fourth Amendment). Back to text
488. See Lisa J. Steele, Comment, The View from on High: Satellite Remote Sensing Technology and the Fourth Amendment, 6 High Tech. L.J. 317, 327-33 (1991) (discussing warrantless searches by satellite and the applicable constitutional implications). Back to text
489. See United States v. Pinson, 24 F.3d 1056, 1059 (8th Cir.) (holding that a warrantless use of infrared sensing devices did not violate the Fourth Amendment because any defendant's subjective expectation of privacy in heat emanating from her house is not one that society is prepared to recognize as objectively reasonable), cert. denied, 115 S. Ct. 664 (1994); United States v. Kerr, 876 F.2d 1440, 1443-44 (9th Cir. 1989) (considering the absence of heat a sign of suspiciously good insulation); United States v. Domitrovich, 852 F. Supp. 1460, 1472 (E.D. Wash. 1994) (holding that thermal imaging does not constitute a "search"); United States v. Penny-Feeney, 773 F. Supp. 220, 225-28 (D. Haw. 1991) (holding that warrants are not required for the use of an infrared sensing device from navigable air space above defendant's house, and noting that heat emanating from a house may be considered a sign that the occupants are growing marijuana within), aff'd on other grounds sub nom. United States v. Feeney, 984 F.2d 1053 (9th Cir. 1993); cf. United States v. Kyllo, 37 F.3d 526, 530 (9th Cir. 1994) (remanding for a hearing on the "intrusiveness" of thermal imaging in order to lay a factual foundation for a ruling on whether thermal imaging is a search within the meaning of the Fourth Amendment). But see United States v. Ishmael, 843 F. Supp. 205, 209-10, 212 (E.D. Tex. 1994) (holding that defendants had a reasonable expectation of privacy in a building and its surrounding property, and therefore thermal images that were not the product of naked eye observations amounted to an illegal, warrantless search); State v. Young, 867 P.2d 593, 601 (Wash. 1994) (holding that the use of an infrared thermal detection device to perform warrantless surveillance of the defendant's home violated the Washington state constitution's protection of defendant's private affairs and its protection against warrantless invasion of his home, as well as the Fourth Amendment of the U.S. Constitution); cf. Lisa J. Steele, Waste Heat and Garbage: The Legalization of Warrantless Infrared Searches, 29 Crim. L. Bull. 19 (1993) (arguing that a warrant should be required for the use of infrared photography to determine activity within a dwelling). Back to text
490. See United States v. Place, 462 U.S. 696, 705-07 (1983) (finding the use of "canine sniff[s]" for narcotics detection to be inoffensive to the Fourth Amendment unless the governmental interest is outweighed by the effect of the search on the individual's liberty interest). For a review of the Supreme Court cases regarding sense-enhanced searches such as dog sniffs, wiretaps, and overflights, as well as a proposed reformulation of the warrant requirement that focuses on sense-enhanced searches most susceptible to abuse, see generally David E. Steinberg, Making Sense of Sense-Enhanced Searches, 74 Minn. L. Rev. 563 (1990). Back to text
491. United States v. Karo, 468 U.S. 705, 715-18 (1984) (noting that, although the monitoring of a beeper is not per se unconstitutional, such monitoring of a person's home is a violation of the Fourth Amendment if the individual has a justifiable interest in the privacy of the residence); see also United States v. Knotts, 460 U.S. 276, [**PAGE 825**]282-85 (1983) (holding that police monitoring of signals does not constitute a search if the police could legitimately monitor the same activities by other legal means). But cf. Note, Tying Privacy in Knotts: Beeper Monitoring and Collective Fourth Amendment Rights, 71 Va. L. Rev. 297 (1985) (criticizing the Knotts and Karo decisions). Back to text
492. Warrantless wiretaps are authorized by the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1802(a) (1988). The President, acting through the Attorney General, may authorize electronic surveillance for up to one year if the surveillance is directed solely at communications between or among foreign powers, there is no substantial likelihood of acquiring communication of U.S. citizens, and minimization procedures have been followed. See id. Title 18 of the U.S. Code also permits warrantless surveillance in emergency situations involving immediate danger, death, or serious physical injury to any persons; conspiratorial activities threatening the national interest; or conspiratorial activities characteristic of organized crime. See 18 U.S.C. § 2518(7) (1988). Back to text
493. All of the court's activities are classified. It is widely believed, however, that the FISA court, as it is known, has yet to turn down a wiretap request.
The Attorney General's reports indicate that not one of the more than 4200 FISA wiretap requests was turned down during the Court's first 10 years. See Cinquegrana, supra note 196, at 814-15; see also ACM Report, supra note 15, at 18. The Court did turn down a request for authorization for a break-in, denying it on the dual jurisdictional grounds that the Court lacked the statutory authority to issue such an order and that the President has the inherent authority to order domestic national security surveillance without need of a court order. See Cinquegrana, supra note 196, at 823.
Congress recently authorized the FISA court to issue warrants for national security break-ins and inspections of the interior of buildings by "technical means." Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No. 103-359, tit. VIII, § 807(a), § 301(5), 108 Stat. 3423, 3444 (1994) (to be codified at 50 U.S.C. § 1821). This authority can be used against American citizens if the Justice Department persuades the FISA court that the suspects are agents of a foreign power. See id. § 301(b), 108 Stat. 3423, 3445; see also United States v. Humphrey, 629 F.2d 908, 912-14 (2d Cir. 1980) (holding that a warrantless search did not violate the Fourth Amendment because it was related to national security); In re Application of the United States for an Order Authorizing the Physical Search of Nonresidential Premises and Personal Property (F.I.S.C. 1981) (holding that a FISA order was not required, and was at any rate unavailable due to lack of jurisdiction, for a warrantless national security break-in), reprinted in S. Rep. No. 280, 97th Cong., 1st Sess. 16 (1981). Back to text
494. The Supreme Court has allowed warrantless searches of homes occupied by parolees, probationers, or welfare recipients. See infra text accompanying note 524. Lower courts have sanctioned two additional exceptions to this rule. First, some courts have approved warrantless national security break-ins (presumably, however, the premises were not specifically designed to resist such break-ins). Second, as described supra note 489, several lower courts have allowed warrantless infrared inspections of properties, including at least one property that was carefully insulated. Back to text
495. See United States v. United States Dist. Court (The Keith Case), 407 U.S. 297, 314-21 (1972) (holding that a warrantless wiretap violated Fourth Amendment rights and implicated First Amendment policies). Back to text
496. Fourth Amendment privacy in this context begins with the premise that people have control over who knows what about them and "the right to shape the `self' that they present[] to the world." Tribe, supra note 434, § 15-16, at 1389-90. This control is protected by the Fourth Amendment freedom from unlawful searches and seizures. See id. Back to text
497. "[T]he purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government . . . ." United States v. Verdugo-Urquidez, 494 U.S. 259, 266 (1990); see also O'Connor v. Ortega, 480 U.S. 709, 730 (1987) (Scalia, J., concurring) (stating that the Fourth Amendment serves primarily to protect the right of privacy); Warden v. Hayden, 387 U.S. 294, 303-05 (1967) (same). Back to text
498. U.S. Const. art. I, § 8, cl. 3. Back to text
499. U.S. Const. art. I, § 8, cl. 18. Technically, federal courts are involved solely in the adjudication of crimes that the legislative authority has defined and to which it has affixed punishments, because they cannot define common-law crimes. See United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812) (holding that the circuit courts of the United States cannot exercise common-law jurisdiction in criminal cases). Note that Article II is also involved in a different type of enforcement because some searches against agents of foreign powers operating either in the United States or abroad can be conducted pursuant to the President's national security powers. See 50 U.S.C. § 1802(a) (1988) (granting the President a limited power to authorize electronic surveillance for up to one year). Back to text
500. For an argument that a mandatory key escrow scheme is a search, and thus would violate the Fourth Amendment's particularity requirement, see Mark I. Koffsky, Comment, Choppy Waters in the Surveillance Data Stream: The Clipper Scheme and the Particularity Clause, 9 High Tech. L.J. 131 (1994). Back to text
501. Oliver v. United States, 466 U.S. 170, 178 (1984); see also Katz v. United States, 389 U.S. 347, 361 (1967) (holding that the Fourth Amendment protects against violations of subjective expectations of privacy that society is prepared to recognize as reasonable). Items in plain view are not considered private. See Horton v. California, 496 U.S. 128, 133 (1990) ("If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy."); Coolidge v. New Hampshire, 403 U.S. 443, 464-66 (1971) (plurality opinion) (describing certain circumstances in which police may, without a warrant, seize evidence in "plain view"); see also Minnesota v. Dickerson, 113 S. Ct. 2130, 2136-37 (1993) (extending the Horton rationale to items in "plain touch"). Back to text
502. See Katz, 389 U.S. at 357 (noting that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions" (footnotes omitted)); cf. Intelligence Authorization Act for Fiscal Year 1995, Pub. L. No. 103-359, § 807(a), §§ 301-309, 108 Stat. 3423, 3443-53 (1994) (to be codified at 50 U.S.C. §§ 1821-1829) (amending FISA to grant the FISA court power to issue in camera, ex parte orders authorizing physical searches and "examination of the interior of property by technical means" on a lesser showing of need than would be required for a warrant); Benjamin Wittes, Surveillance Court Gets New Powers, Legal Times, Nov. 7, 1994, at 1 (noting the ACLU's claim that the extension of FISA court's power is "a clear violation of the Fourth Amendment"). Back to text
503. See Florida v. Riley, 488 U.S. 445, 451-52 (1989) (plurality opinion) (holding that aerial police surveillance of an individual's house from a helicopter flying at four hundred feet does not offend the Fourth Amendment); California v. Ciraolo, 476 U.S. 207, 215 (1986) (finding constitutional the aerial surveillance of a yard enclosed by a 10-foot fence). Back to text
504. See United States v. Place, 462 U.S. 696, 707 (1983) (holding that the use of canines in narcotics searches is not per se unconstitutional, but is subject to reasonableness requirements). Back to text
505. 277 U.S. 438, 468-69 (1928) (holding that the admission of evidence obtained through telephone taps offends neither the Fourth nor the Fifth Amendment). Back to text
506. See Katz, 389 U.S. at 353; Berger v. New York, 388 U.S. 41, 51 (1967). Back to text
507. See infra text accompanying note 514. Back to text
508. See, e.g., New York v. Belton, 453 U.S. 454, 457 (1981) (stating that "a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area"). Back to text
509. See, e.g., Cupp v. Murphy, 412 U.S. 291, 295-96 (1973) (justifying a warrantless search on the grounds that an arrestee will be "sufficiently apprised of his suspected role in the crime to motivate him to destroy what evidence he [can]"); Schmerber v. California, 384 U.S. 757, 769-71 (1966) (concluding that the rapid depletion of [**PAGE 829**]alcohol in the human bloodstream justifies a warrantless blood-alcohol test). Back to text
510. See United States v. Montoya de Hernandez, 473 U.S. 531, 537-38 (1985) (noting that the longstanding tradition of conducting warrantless searches of persons entering the United States reflects a concern for "the protection of the integrity of the border"); United States v. Martinez-Fuerte, 428 U.S. 543, 557 (1976) (stating that the need to make routine stops at border checkpoints in order to prevent the entrance of smugglers and illegal aliens outweighs any intrusion on Fourth Amendment interests); California Bankers Ass'n v. Schultz, 416 U.S. 21, 62-63 (1974) (dictum) (stating that those "leaving the country may be examined as to their belongings and effects, all without violating the Fourth Amendment"). Back to text
511. See 18 U.S.C. § 2518 (1988 & Supp. V 1993); see also supra notes 502-06 and accompanying text (discussing the Fourth Amendment's warrant requirement). Back to text
512. But see supra note 211 and text following note 338 (describing a reason to doubt user expectations of privacy). Back to text
513. See infra Technical Appendix, part B (describing a public-key cryptographic system). Back to text
514. Craig M. Cornish & Donald B. Louria, Employment Drug Testing, Preventive Searches, and the Future of Privacy, 33 Wm. & Mary L. Rev. 95, 98 (1991). Back to text
515. 489 U.S. 656 (1989); see also Florida v. Bostick, 501 U.S. 429, 434 (1991) (holding that random approaches to passengers in buses, conducted pursuant to passengers' consent, are not per se unconstitutional); Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 447 (1990) (classifying suspicionless sobriety checkpoints to deter drunk driving as reasonable under the Fourth Amendment); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 634 (1989) (finding drug and alcohol tests mandated by Federal Railroad Administration regulations reasonable under the Fourth Amendment); Marshall v. Barlow's, Inc., 429 U.S. 1347, 1347 (1977) (granting stay of injunction against further warrantless searches of workplaces permitted under the Occupational Safety and Health Act of 1970, Pub L. No. 91-596, 84 Stat. 1590 (codified as amended in scattered sections of 5 U.S.C., 15 U.S.C., 18 U.S.C., 29 U.S.C., and 42 U.S.C. (1988 & Supp. V 1993))). But see Camara v. Municipal Court, [**PAGE 831**]387 U.S. 523, 540 (1967) (finding that the defendant had a constitutional right to deny a housing inspector entry into a leasehold without a warrant in a non-emergency situation). Back to text
516. See Von Raab, 489 U.S. at 665. Back to text
517. Id. Back to text
518. Id. at 665-66 (citing Skinner, 489 U.S. at 619-20). Back to text
519. Id. at 668 (offering hidden conditions and impracticality as examples of "compelling" special needs) (citing Skinner, 489 U.S. at 624). Back to text
520. The special needs standard has received strong criticism from academic commentators. See William J. Stuntz, Implicit Bargains, Government Power, and the Fourth Amendment, 44 Stan. L. Rev. 553, 554 & n.10 (1992) (summarizing criticisms). Back to text
521. See Von Raab, 489 U.S. at 666 (explaining that the Customs Service's mandatory employee drug testing program was not designed to further criminal prosecutions, but to ensure that drug users did not ascend to certain positions in the service). Back to text
522. Cf. United States v. Martinez-Fuerte, 428 U.S. 543, 557 (1976) (stating that requiring particularized suspicion before routine stops on major highways near the Mexican border "would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens"). Back to text
523. "A determination of the standard of reasonableness applicable to a particular [**PAGE 832**]class of searches requires `balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.'" O'Connor v. Ortega, 480 U.S. 709, 719 (1987) (citations omitted). Back to text
524. See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 3.9 (2d ed. 1992). Back to text
525. 387 U.S. 523 (1967). Back to text
526. See id. at 534, 538-39. Back to text
527. See id. at 534. Back to text
528. See id. at 536-39. The Camera Court relied on several factors absent from the mandatory key escrow scenario for its holding, including the "long history of judicial and public acceptance" of housing code inspections. Id. at 537. Back to text
529. 400 U.S. 309, 316-18 (1971) (holding that a mandatory (and warrantless) home visit by a welfare caseworker does not violate any of the welfare recipient's Fourth Amendment rights). The breadth of the special needs justification becomes particularly clear when one considers the means by which the Wyman Court permitted warrantless intrusions into welfare recipients' homes. See id. Back to text
530. Given the plasticity of the special needs doctrine, it is possible that the Court would extend the regulatory search exception to the home user of encryption. Extending the logic of Von Raab to the home, however, would gut much of what remains of the Fourth Amendment, and is a result to be avoided at all costs. Back to text