What is the major danger of widespread, unsupervised cooperation between service providers, like Google and Facebook, and the government? There are two major branches to this question. First is what Professor Philip Bobbitt has called the “strategic” dimension. The government has routinely carried out surveillance on foreign nationals. After the Patriot Act, its ability to surveil American citizens has also dramatically broadened. Now, the government is not yet prepared to take some form of preemptive action against perceived “threats” from its won citizens. A plausible form of intimidation may be the use of information gleaned from social networks to fabricate some kind of reasonable suspicion for a search, or probable cause for an arrest, thereby subjecting citizens to harassment based on information they make available on social networks. A safeguard against this may be to amend the Electronic Privacy Communications Act to prohibit such “bootstrapping,” so that no information gleaned from web-crawling of social networks may be a basis for reasonable suspicion or probable cause. To a large extent, however, focusing on the retrospective effects of criminal law obscures the more important issue, which is potential transfer of information from Facebook to the national security apparatus. While it is almost certain that national security apparatuses would take interest in the contents of Facebook, there appears to be no transparency concerning how Facebook interacts with national security agencies.

A related problem, however, may be the reporting of non-public postings by Facebook friends.

Paper Title

-- By YinHuang - 23 Feb 2012

Introduction

The evolution of technology has complicated the interpretation of the Fourth Amendment. Modern interpretations tend to focus on the portion of the Amendment prohibiting "unreasonable searches and seizures." Crucial as this fragment might be, it must be read in light of the surrounding language. In particular, the concepts of "search" and "seizure" do not exist in a conceptual vacuum. Rather, they are defined with respect to particular physical settings: the people have a right "to be secure in their persons, houses, papers, and effects." This language indicates that the ratifiers were concerned mainly with government intrusion into well-defined private spaces. Given the eighteenth-century backdrop against which the Amendment was drafted, these limitations are not surprising. At that time, "searches" could only be conducted by physical intrusion into a house or the physical detainment of a person. Likewise, "seizures" necessarily referred to the taking of physical objects or papers bearing information. In this historical context, "surveillance"--as that term is presently understood--simply did not exist. In effect, carrying out an act of search and seizure was an all-or-nothing proposition: either the government refrained from attempting to obtain private information, or the government employed physical methods of search and seizure that implicated the plain language of the Fourth Amendment.

Modern technology, however, has blurred the distinction between that which is "private" for the purposes of the Fourth Amendment and that which is "public." Given that a significant portion--if not the majority--of communications are now transmitted by electronic means, it is no longer necessary to detain "persons" or invade "houses" in order to secure "papers" and "effects."

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