Page 56 - Privacy in a Cyber Age Policy and Practice

MORE COHERENT, LESS SUBJECTIVE, AND OPERATIONAL 41

In Florida v. Jardines, the Court ruled that the use of a narcotics-sniffing
dog to detect illegal drugs in a suspect’s home was a search per the Fourth
Amendment because the dog was brought onto the private property—
albeit only onto the porch. The Court found that unlike a law enforcement
official knocking on the door, the act of introducing a police dog into the
area was different from the typical, expected actions of a private citizen and
was therefore a search. In the majority opinion, Justice Scalia wrote,

We have accordingly recognized that “the knocker on the front door is treated
as an invitation or license to attempt an entry, justifying ingress by solicitors,
hawkers and peddlers of all kinds.” This implicit license typically permits the
visitor to approach the home by the front path, knock promptly, wait briefly
to be received, and then (absent invitation to linger longer) leave. Comply-
ing with the terms of that traditional invitation does not require fine-grained
legal knowledge; it is generally managed without incident by the Nation’s
Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a war-
rant may approach a home and knock, precisely because that is “no more
than any private citizen might do.” But introducing a trained police dog to
explore the area around the home in the hopes of discovering incriminating
evidence is something else. There is no customary invitation to do that.” 96

A court following the CAPD would arrive at the opposite conclusion, given
that the information collected was of low volume and very narrow band-
width. Concern with cybernation would be the same as with Katz. Once
again it must be emphasized that the CAPD views the home as no more
inherently private than the public sphere—or, more precisely, the CAPD
seeks to protect information, not places. The premise of the CAPD is that
sensitive information derives its status not from where it is revealed, but
from the content contained in the revelation. A great many things that
occur in the home may be sensitive, but this is not due to their occurrence
in the home. Measuring the level of air pollution in a home would entail
much less of a privacy violation then reading a person’s e-mails, even if
they were sent from a bench in a public park. Of course, the opposite may
also take place; much more highly sensitive information could be collected
from the home than from speed cameras. The key variables are the volume,
the level of sensitivity, and the extent of cybernation—not where the infor-
mation was first collected.
United States v. White concerns the use of a government informant
wearing a hidden microphone to record conversations. The Court ruled
that this act does not constitute a Fourth Amendment search because
the suspect has no reasonable expectation that the undercover informant
would not pass along the information to law enforcement—a still different
rationale than those offered in other Fourth Amendment cases. A court