Page 199 - Privacy in a Cyber Age Policy and Practice

NOTES 187

“circular to say that there is no invasion of privacy unless the individual whose
privacy is invaded had a reasonable expectation of privacy; whether he will or
will not have such an expectation will depend on what the legal rule is”). See
also Richard S. Julie, High-Tech Surveillance Tools and the Fourth Amendment:
Reasonable Expectations of Privacy in the Technological Age, 37 Am. Crim. L.
Rev. 132 (2000); Anthony G. Amsterdam, Perspectives on the Fourth Amend-
ment, 58 Minn. L. Rv. 349, 384 (1974); Jed Rubenfeld, The End of Privacy, 61
Stan. L. Rev. 106 (2008); Richard H. Seamon, Kyllo v. United States and the Par-
tial Ascendance of Justice Scalia’s Fourth Amendment, 79 Wash. U. L. Q. 1023–4
(2001). The Court acknowledged this criticism in Kyllo, 121 S. Ct. at 2043.
33. Amitai Etzioni, “A Liberal Communitarian Conception of Privacy,” John Mar-
shall Journal of Information Technology and Privacy Law 29, no. 419 (2012).
34. Peter P. Swire, “Katz Is Dead. Long Live Katz,” Michigan Law Review 102,
(2004): 913.
35. United States v. Windsor (570 U.S. 12, 2013).
36. For a concept of harm, see Cate, Cullen, and Mayer-Schönberger, “Reinventing
Privacy Principles for the Big Data Age,” 14.
37. Berkemer v. McCarty (468 U.S. 420, 1984). Although the Supreme Court
granted certiorari to a case of drunk driving that sought to clarify this distinc-
tion, the Court ruled that until the suspect is actually placed under arrest and
into a police vehicle the question of whether she is in custody is a function
of the extent to which the circumstances of the stop mimic the restraints and
stresses of actual arrest.
38. In common law, “impartial” was understood to mean having a lack of familial
ties to or financial interest in the outcome of a case; however, today people
often interpret “impartial” to mean that jurors know nothing of the case at
hand other than the facts presented at trial. Caren Myers Morrison, “Jury 2.0,”
Hastings Law Journal 62, 6 (2011): 1619.
39. Maynard v. United States. Orin Kerr, “The Mosaic Theory of the Fourth
Amendment,” Michigan Law Review 111, 3 (2012): 329.
40. Though arguably restrictions or guidelines on the megabytes of information to
be collected should vary based on the type of information. This is because the
byte is strictly speaking a measure of data, not information. 100 mb of data,
for example, is enough for thousands of text e-mails but less than five minutes
of high-quality video, and the former could provide a much greater amount of
private information than the latter.
41. “Surveillance Self-Defense: Getting a Court Order Authorizing a Wiretap,”
Electronic Frontier Foundation, Accessed March 13, 2014, https://ssd.eff.org/
wire/govt/wiretapping-authorization.
42. Kevin V. Ryan and Mark L. Krotosi, “Caution Advised: Avoid Undermining the
Legitimate Needs of Law Enforcement to Solve Crimes Involving the Internet
in Amending the Electronic Communications Privacy Act,” University of San
Francisco Law Review 47, 2 (2012): 321.
43. United States v. Jones (2012).
44. To clarify, speed cameras tell only what speed a vehicle is going at a single
moment in time—that is, they collect one discrete data point. The same is true