Page 192 - Privacy in a Cyber Age Policy and Practice

180 NOTES

6. This is of course not a terribly new position—legal scholars have been discussing
the implications for privacy and the Fourth Amendment of the Internet since its
introduction as publicly available technology. See Lawrence Lessig, Code and
Other Laws of Cyberspace, (Basic Books, 1999), 222–23 and Laurence H. Tribe,
“The Constitution in Cyberspace, Keynote Address at the First Conference
on Computers, Freedom, & Privacy” (March 26, 1991) (transcript available at
www.sjgames.com/SS/tribe.html).
7. Erin Smith Dennis, “A Mosaic Shield: Maynard, the Fourth Amendment, and
Privacy Rights in the Digital Age,” Cardozo Law Review 33 (2012): 737. See
also Orin Kerr, “The Mosaic Theory of the Fourth Amendment,” Michigan Law
Review 111 (2012): 311, 320 (“Under mosaic theory, searches can be defined
collectively as a sequence of discrete steps rather than as individualized steps.
Identifying Fourth Amendment search requires analyzing police actions
over time as a collective ‘mosaic’ of surveillance.”); Madelaine Virgina Ford,
“Mosaic Theory and the Fourth Amendment: How Jones Can Save Privacy
in the Face of Evolving Technology,” American University Journal of Gender,
Social Policy & the Law 19 (2011): 1351; Bethany L. Dickman, “Untying Knotts:
The Application of Mosaic Theory to GPS Surveillance in United States v. Mary-
land” American University Law Review 60 (2011): 731.
8. Kyllo v. United States, 533 U.S. 27 (2001), internal citations omitted.
9. Payton v. New York, 445 U.S. 573, 591–98 (1980).
10. Dow. Chem. Co. v. United States, 749 F.2d 307, 314 (6th Cir. 1984), aff’d, 476
U.S. 227 (1986).
11. Catharine A. MacKinnon, “Reflections on Sex Equality Under Law,” Yale Law
Journal 100 (1991): 1281, 1311.
12. Linda C. McClain, “Inviolability and Privacy: The Castle, the Sanctuary, and
the Body,” Yale Journal of Law and the Humanities 7 (1995): 195, 209.
13. Amitai Etzioni, “The Bankruptcy of Liberalism and Conservatism,” Political
Science Quarterly 128 (2013): 39.
14. Christopher Slobogin, “Public Privacy: Camera Surveillance of Public Places
and the Right to Anonymity,” Mississippi Law Journal 72 (2002): 213. Scott E.
Sundby, “Everyman’s Fourth Amendment: Privacy or Mutual Trust between
Government and Citizen?” Columbia Law Review 94 (1994): 1751, 1758–89;
Bethany L. Dickman, “Untying Knotts: The Application of Mosaic Theory
to GPS Surveillance in United States v. Maryland,” American University Law
Review 60 (2011): 731.
15. Christopher Slobogin, “Public Privacy,” 213, 264.
16. Ibid., 265.
17. For a critical analysis of the “Information Sharing Paradigm” that has arisen
in law enforcement and intelligence community since 9/11, see Peter P. Swire,
“Privacy and Information Sharing in the War on Terrorism,” Villanova Law
Review 51 (2006): 260.
18. Alexander Aleinikoff, writing in 1987, argued that the courts had entered the “age of
balancing.” “Balancing has been a vehicle primarily for weakening earlier categori-
cal doctrines restricting governmental power to search and seize.” T. Alexander
Aleinikoff, “Constitutional Law in the Age of Balancing,” Yale Law Journal 96 (1987):