Page 57 - Privacy in a Cyber Age Policy and Practice

42 PRIVACY IN A CYBER AGE

following the principles of the CAPD would come to the same conclusion
as long as the authorities set limits on the length or number of conversa-
tions recorded, no other modes of surveillance were used simultaneously,
and cybernation of the resulting information was properly limited through
accountability measures.
The CAPD would also recognize a broad category of administrative and
safety “searches” that collect a low amount of narrow bandwidth informa-
tion but furnish critical contributions to a public good. Health inspections
at restaurants fit into this category; the information collected by the health
inspector is of low volume, with very few searches happening per year and
specific types of information sought. The information collected is also of
low sensitivity—indeed, most of it is not personal. Finally, there is little
need to cybernate the information as long as the restaurant is in compli-
ance with food safety laws; in the case of noncompliance, the information
would only be cybernated with other health inspection information from
the same restaurant to track progress. If kept for the purposes of public
policy analysis, the information’s identifying markers would be removed.
This rationale seems more coherent, more systematic, and less subjec-
tive than the myriad diverse reasons given by the courts for authorizing
administrative searches. Indeed, many legal scholars have bemoaned the
complexity of administrative search jurisprudence in particular, calling it
“incoherent,” “abysmal,” “devoid of content,” a “conceptual and doctrinal
embarrassment,” and “chaotic at best.” 97
It is therefore clear that the criteria employed by the CAPD can be as
operationalized as the criteria now used by the courts. It is similarly clear
that the CAPD provides a much more systematic and less subjective set of
criteria for distinguishing those intrusions that do not constitute a search
in the Fourth Amendment sense from those that do.

ii. High Volume, Low Sensitivity, Limited Cybernation
The collection of information about a person over longer periods of time
and at a high bandwidth should be tolerated as long as the information is
lowly sensitive and cybernation is limited, in particular by strong account-
ability measures, because violations of privacy will be limited in these
cases. This category includes the planting of beepers, tracking the location
of cell phones, the long-term use of GPS tracking devices, and similar law
enforcement projects. Again, it is useful to consider the similarities and dif-
ferences between courts instructed by the prevailing privacy doctrine and a
court whose rationale stems from the CAPD.
Consider, for example, the case of Smith v. Maryland. In this case, the
police, without a warrant, installed a pen register that recorded all of the
numbers that connected to the phone of a robbery victim who had begun