Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
communicating over the Internet possess some level of asubjective expectation of privacy in the URL and IP informationthat Carnivore uses to conduct electronic surveillance. However,the real question in the analysis is whether society is ready torecognize such an expectation.Society’s ExpectationThis second, and more difficult prong of the two part Katz testto satisfy, addresses whether society is prepared to recognize areasonable expectation of privacy in the electronic communication.The Supreme Court has stated that society is not willing torecognize an individual’s expectation of privacy unless thatexpectation is “objectively reasonable.”63The Katz court defined objective reasonableness in the form ofa two-factor application. The first factor addresses whether theindividual attempted to deny public access to hiscommunication.64 The second factor focuses on whether lawenforcement has intercepted the content of the individual’stransmission.65Katz involved the warrantless recording of a telephoneconversation an individual had in a public phone booth that hadbeen bugged by law enforcement officials. Applying these twofactors, the Court determined that the individual subjected to thesurveillance had an objectively reasonable expectation of privacyin using the phone booth because he had taken steps to denypublic access to his conversation.66 Also, law enforcement had fullaccess to the content of the individual’s phone conversationbecause they had placed a recording device on the exterior of thebooth itself.In the years since Katz, at least with respect to those caseswhere the Court has been presented with more traditionalparameters,67 the Supreme Court’s reasoning and application of63. California v. Greenwood, 486 U.S. 35 (1988).64. Katz, 389 U.S. at 351.65. Id. at 354.66. Id. at 347.67. See Allegra Knopf, Privacy and the Internet: Welcome to the Orwellian World,11 J. Law & Pub. Pol’y 79, 83 (1999) (discussing how the Katz framework has appliednicely to situations where society holds conventional notions of public and privateplaces).
determinative factors has been further verified.68 Where there islittle, if any established parameters, such as the FourthAmendment’s application regarding the Internet, the analysis hastended toward a narrow application of the Katz reasoning.69 Infact, the few judicial decisions expressly addressing Internettransmissions have applied the Katz reasoning very narrowly.70For instance, in United States v. Charbonneau,71 the court heldthat an individual’s expectation of privacy in electronic mail wassignificantly less than that held in posted mail.72 Also, in UnitedStates v. Kennedy,73 the court established that society would notrecognize an expectation of privacy in information a user passesonline to an ISP when contracting for Internet service.74Thus, the judicial decisions addressing personal privacy onthe Internet strongly suggest that a narrow interpretation of theKatz analysis will be applied to determine if society will recognizean expectation of privacy in URL and IP information. The firstinquiry would undoubtedly address whether Carnivore enablesaccess to the content of the electronic communications of personsnot named in a court order. It is very improbable that, under anarrow Katz application, a court would determine URL and IPinformation to be “content” because each serves a function similarto that of a telephone number. Also, if the judiciary is not willingto recognize an equal expectation of privacy in electronic mail tothat of posted mail, the probability of successfully arguing that theprotection of information can be intercepted by law enforcementwithout intrusion into the body of the electronic communication itaccompanies is minimal.The second inquiry in the Katz analysis would certainly focuson whether the individual attempted to restrict third party accessto his URL or IP information. Again, the judiciary will likelyconclude that users of the Internet must realize that they “convey”their URL information since this information must travel throughthe ISP’s network to reach whatever destination is desired.75 The68. See Minnesota v. Carter, 525 U.S. 83 (1998); see also O’Connor v. Ortega, 480U.S. 709 (1987).69. See Knopf, supra note 65, at 83.70. See Skok, supra note 1, at 72.71. 979 F. Supp. 1177 (S.D. Ohio 1997).72. Id. at 1184.73. 81 F. Supp. 2d 1103 (D. Kan. 2000).74. Id. at 1110.75. See Smith, 442 U.S. at 742 (reasoning that an individual realizes that he must
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communicating over the Internet possess some level <strong>of</strong> asubjective expectation <strong>of</strong> privacy in the URL and IP informationthat Carnivore uses to conduct electronic surveillance. However,the real question in the analysis is whether society is ready torecognize such an expectation.Society’s ExpectationThis second, and more difficult prong <strong>of</strong> the two part Katz testto satisfy, addresses whether society is prepared to recognize areasonable expectation <strong>of</strong> privacy in the electronic communication.The Supreme Court has stated that society is not willing torecognize an individual’s expectation <strong>of</strong> privacy unless thatexpectation is “objectively reasonable.”63The Katz court defined objective reasonableness in the form <strong>of</strong>a two-factor application. The first factor addresses whether theindividual attempted to deny public access to hiscommunication.64 The second factor focuses on whether lawenforcement has intercepted the content <strong>of</strong> the individual’stransmission.65Katz involved the warrantless recording <strong>of</strong> a telephoneconversation an individual had in a public phone booth that hadbeen bugged by law enforcement <strong>of</strong>ficials. Applying these tw<strong>of</strong>actors, the Court determined that the individual subjected to thesurveillance had an objectively reasonable expectation <strong>of</strong> privacyin using the phone booth because he had taken steps to denypublic access to his conversation.66 Also, law enforcement had fullaccess to the content <strong>of</strong> the individual’s phone conversationbecause they had placed a recording device on the exterior <strong>of</strong> thebooth itself.In the years since Katz, at least with respect to those caseswhere the Court has been presented with more traditionalparameters,67 the Supreme Court’s reasoning and application <strong>of</strong>63. California v. Greenwood, 486 U.S. 35 (1988).64. Katz, 389 U.S. at 351.65. Id. at 354.66. Id. at 347.67. See Allegra Knopf, Privacy and the Internet: Welcome to the Orwellian World,11 J. <strong>Law</strong> & Pub. Pol’y 79, 83 (1999) (discussing how the Katz framework has appliednicely to situations where society holds conventional notions <strong>of</strong> public and privateplaces).
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