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943, 965. Many civil libertarians have argued that post-9/11, Fourth Amendment
rights are being systematically eroded in the name of national security. See Jay
Stanley, “Reviving the Fourth Amendment and American Privacy,” ACLU (May
28, 2010), http://www.aclu.org/blog/national-security-technology-and-liberty/
reviving-fourth-amendment-and-american-privacy. See also Orin S. Kerr,
“An Equilibrium-Adjustment Theory of the Fourth Amendment,” Harvard Law
Review 125 (2011): 476, 478. (“The theory of equilibrium-adjustment posits
that the Supreme Court adjusts the scope of Fourth Amendment protection in
response to new facts in order to restore the status quo level of protection. When
changing technology or social practice expands government power, the Supreme
Court tightens Fourth Amendment protection; when it threatens government
power, the Supreme Court loosens constitutional protection.”)
19. See Amitai Etzioni, The Limits of Privacy (New York: Basic Books, 1999).
20. See note 78.
21. “This point is virtually identical to the demand that courts make of govern-
ment legislation when they are applying heightened scrutiny—that is, strict or
intermediate scrutiny—in First Amendment or Equal Protection Clause cases.
The court has also hinted at such a proportionality of means requirement,
albeit much less clearly, in its Fourth Amendment ‘special needs’ cases.” Marc
Blitz, comment to the author, January 17, 2014.
22. American Bar Association, ABA Standards for Criminal Justice: Law Enforce-
ment Access to Third Party Records Standards, 3rd ed. (2013), http://www.
americanbar.org/content/dam/aba/publications/criminal_justicesee_
standards/third_party_access.authcheckdam.pdf.
23. Shaun Spencer raises concerns about legislating privacy protections. See Shaun
Spencer, “Reasonable Expectations and the Erosion of Privacy,” San Diego Law
Review 39 (2002): 843, 860. (“Given the powerful influence of various lobbies
opposed to strong privacy protection, that role may best be described as a sine
qua non. That is, unless the public has a strong desire for privacy in a particu-
lar area, attempts to pass legislation establishing that area as a private sphere
are doomed to fail…To the extent that legislatures base privacy legislation on
social values and norms, they necessarily rely on the same changing expecta-
tions as the judicial conception of privacy.”)
24. Amitai Etzioni, From Empire to Community: A New Approach to International
Relations (New York: Palgrave Macmillan, 2004): 67–71.
25. Federal Bureau of Investigation, “‘Offenses Cleared,’ Uniform Crime Report:
Crime in the United States 2011” (October 2012).
26. Smith v. Maryland, 442 U.S. 735, 745 (1979).
27. United States v. Miller, 425 U.S. 435 (1976).
28. Couch v. United States, 409 U.S. 322 (1973).
29. Zurcher v. Stanford Daily, 436 U.S. 547 (1978).
30. Fisher v. United States, 425 U.S. 391 (1976).
31. The preceding examples are laid out in Peter P. Swire, “Katz Is Dead. Long Live
Katz,” Michigan Law Review 102, 5 (2004): 908–916.
32. Privacy Act of 1974, as amended, Federal Trade Commission, available at
http://www.ftc.gov/foia/privacy_act.shtm (accessed April 7, 2013).