Page 209 - Privacy in a Cyber Age Policy and Practice

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45. Craig Mundie, “Privacy Pragmatism: Focus on Data Use, Not Data Collection,”
Foreign Affairs, March/April 2014.
46. See, for example, Justice Marshall in 442 U.S. 735 (1979) (arguing that “unless
a person is prepared to forgo [. . .] personal or professional necessity, he can-
not help but accept the risk of surveillance [by third parties],” which is of less
relevance to privacy than “the risks he should be forced to assume in a free and
open society.”). See also United States V. Jones, 615 F. 3d 544 (Justice Sotomayor
argues the third-party doctrine is “ill suited to the digital age”).
47. James J. Tomkovicz, “Beyond Secrecy for Secrecy’s Sake: Toward an Expanded
Vision of the Fourth Amendment Privacy Province,” Hastings Law Journal
36 (1985) 645, 649; Richard G. Wilkins, “Defining the ‘Reasonable Expecta-
tion of Privacy’: An Emerging Tripartite Analysis,” Vanderbilt Law Review 40
(1987): 1077, 1087.
48. Anthony G. Amsterdam, “Perspectives on the Fourth Amendment,” Minnesota
Law Review 58 (1974): 349, 382.
49. Orin S. Kerr, “The Fourth Amendment and New Technologies: Constitutional
Myths and the Case for Caution,” Michigan Law Review 102 (2004): 820.
50. 389 U.S. 347, 361.
51. Daniel T. Pesciotta, “I’m Not Dead Yet: Katz, Jones, and the Fourth Amend-
ment in the 21st Century,” Case Western Reserve Law Review 63 (2012):
188, 243.
52. United States v. Katz, 389 U.S. 352.
53. 468 U.S. 705, 714.
54. Kyllo v. United States, 533 U.S. at 34, 40.
55. United States v. Knotts, 460 U.S. 276 (1983).
56. California v. Ciraolo, 476 U.S. 207 (1986).
57. Dow Chem. Co. v. United States, 476 U.S. 227 (1986).
58. United States v. Jones, 615 F. 3d 544.
59. Pesciotta, “I’m Not Dead Yet,” 244.
60. Ibid., 230.
61. Ibid.; Sherry F. Colb, “The Supreme Court Decides the GPS Case, United States
v. Jones, and the Fourth Amendment Evolves,” Verdict Justia (2012).
62. United States v. Jones, 615 F. 3d 544 (2012).
63. Ibid.
64. “New surveillance technology can track everyone in an area for hours at a
time,” Washington Post, February 5, 2014: Persistent Security Systems uses air-
borne cameras to “track every vehicle and person across an area the size of a
small city, for several hours at a time.” [. . .] “Police are supposed to begin looking
at the pictures only after a crime has been reported.”
65. New York City Government, “Mayor Bloomberg, Police Commissioner Kelly
and Microsoft unveil new, state-of-the-art technology that aggregates and
analyzes existing public safety data in real time to provide a comprehensive
view of potential threats and criminal activity,” August 8, 2012: A joint effort
of Microsoft and the New York Police Department “aggregates and analyzes
existing public safety data streams” from cameras, license plate readers, radia-
tion detectors, and law enforcement databases. The technology helps police