Intellectual Property Law

Just Because You Can, Doesn?t Mean You Should

By Michael Scott

When I was growing up, my dad always told me that ?just because you can do something, doesn?t mean you should.? Just because you can climb that tall tree, doesn?t mean you should. Just because you can ride your bike on that busy street, doesn?t mean you should. It was good advice that I have passed onto my kids.

It?s advice that also applies in the technology field. Just because we can develop certain technologies, doesn?t mean we should do so. Think of chemical weapons. World leaders have decided that such weapons should not be produced or deployed, even though we have the ability to do so.

It also should be applied in the tech law field. Particularly where we are dealing with technology that can invade people?s privacy. Two lines of cases come to mind. The first line of cases, including United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008), cert. denied, __ U.S. __, 129 S. Ct. 1312 (2009), have held that the government has the right to search a computer or any other electronic device possessed by a person at the border ? without a warrant or probable cause. The cases have held that warrantless border searches are permissible because the government has an absolute right to regulate what crosses its borders. The fact that the government can conduct such warrantless border searches, however, does not mean that it should.

A second example are the recent cases upholding the warrantless use of GPS devices on cars. In United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010) and Foltz v. Commonwealth (Va. App. Ct. Sept. 7, 2010), the courts held that because there is no reasonable expectation of privacy in where a car is driven (since it can be observed by anyone on the street), there is no Fourth Amendment violation in attaching a GPS device to the vehicle and remotely monitoring the location and route taken by the vehicle without a warrant based on probable cause. Despite the fact that:

?The police had no policy regarding the use of GPS devices, in part because the devices were not used particularly often. The police did not predetermine how long they would track appellant. The police also did not develop a policy to avoid following the van into private areas.?

the Virginia court found no violation of the defendant?s rights.

In both of these examples, the courts have found that the government can engage in the conduct at issue without violating the Fourth Amendment. But the more important question is whether our government should be engaging in such conduct. While the Fourth Amendment provides a baseline for government conduct, it should be viewed as a minimum standard for individual rights, and not a maximum.

Congress has the right to require a higher standard from the government if it believes that our society requires the government to be held to such higher standard. We saw that happen in the passage of the Electronic Communications Privacy Act of 1986 (ECPA). The Act continued the federal law that regulated law enforcement?s use of wiretapping technology, despite the fact that the U.S. Supreme Court had previously held that warrantless wiretapping was not a violation of the Fourth Amendment as long as law enforcement did not physically trespass on the suspect?s property. See Olmstead v. United States, 277 U.S. 438 (1928).

The ECPA updated the prior wiretapping statute by adding electronic communications (e.g., e-mails) to the class of protected communications. Despite the fact that courts have held that there is no reasonable expectation of privacy under the Fourth Amendment in e-mails (since the recipient can disclose the contents of the e-mail to others), courts have recognized that the ECPA establishes a higher standard that law enforcement must meet before intercepting e-mails in transit or retrieving them from storage.

In enacting the ECPA, Congress decided that even though the government can wiretap telephone conversations and e-mails with impunity under the Fourth Amendment, it should not be allowed to do so unless it meets the ECPA?s higher standard.

Congress could and should do the same thing with warrantless border searches of electronic devices and the use of GPS devices. Unfortunately, in this political climate it is unlikely to happen.

It?s too bad they won?t take my father?s advice.

Full post as published by Singularity on September 08, 2010 (boomark / email).