--- Background: http://www.politechbot.com/cgi-bin/politech.cgi?name=kyllo --- Date: Tue, 19 Jun 2001 16:11:29 -0400 From: "Phil Corwin" <pcorwin@butera-andrews.com> To: declanat_private Subject: FW: Comment re: Jeffrey Rosen's Op-Ed on the Kyllo Decision (Privacy and Technology) Declan: Thought you might find this letter I sent to the WSJ yesterdau to be of some interest. Hope all is well. Best, Philip -----Original Message----- From: Phil Corwin [mailto:pcorwin@butera-andrews.com] Sent: Monday, June 18, 2001 12:53 PM To: 'editorsat_private' Subject: Comment re: Jeffrey Rosen's Op-Ed on the Kyllo Decision (Privacy and Technology) Jeffrey Rosen (A Victory for Privacy, June 18) is correct that Justice Scalia's majority opinion in the Kyllo case "is only the latest illustration of how privacy is an issue about which liberal and conservative justices can increasingly agree", as well as in his observation that "as invasive technologies become more commonplace, the court may have to decide that there are certain invasions no citizen in a civilized society should endure". The Court's decision, while welcome, unfortunately contains the seeds of its own destruction as a meaningful bulwark against technological erosion of privacy protections. That is due to its limitation to technologies incorporated in "a device that is not in general public use". Under this standard, as sophisticated technologies with the ability to surreptitiously invade privacy become widely utilized, Constitutional privacy protection contracts. In other words, the more such protection is needed, the less it is available. Applied to the facts of the Kyllo case, citizens may lose Constitutional protection against a future "search" conducted by a thermal imaging device if such devices have enjoyed broad adoption by the public. In fact, thermal imagery is already being offered as an automotive night vision enhancement, and in night vision goggles. Should these and similar uses achieve substantial market penetration sufficient to satisfy a future Court's subjective determination of "general public use" the same scenario could yield an opposite decision. The general public use standard raises even greater concerns when applied to protecting the information stored on the hard drives of home computers as we contemplate a future of constant broadband connection and broad use of peer-to-peer technologies. Napster, whatever its status under copyright law, demonstrated mass public acceptance of the notion that one's own computer can be a server providing content to others, and vice versa. But readily obtainable hacker programs make it possible to search another person's hard drive for sensitive financial, medical, and other information as well as for MP3 music files. Neither the "general public use" standard of the Kyllo decision or the "reasonable expectation" standard of the earlier Katz case may be sufficient to assure Constitutional prohibition of unauthorized hard drive searches. The limited statutory protections of current Federal law, in the Computer Fraud and Abuse Act and the Electronic Communications Privacy Act, also fall short. So, while the Kyllo decision is a welcome stopgap, much work remains to be done by jurists and legislators of all political stripes if the privacy of information stored on computers is to remain secure against unreasonable searches in the twenty-first century. Sincerely, Philip S. Corwin Partner Butera & Andrews 1301 Pennsylvania Ave., NW Suite 500 Washington, DC 20004 202-347-6875 (voice)/-6876 (fax) ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe, visit http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
This archive was generated by hypermail 2b30 : Sat Jun 23 2001 - 01:01:13 PDT