Vol 7 No 1 - Roger Williams University School of Law

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