1.  See, e.g., letter from ACT et al. to Robert W. Goodlatte, Chairman, and John Conyers, Jr., Ranking Member, House Judiciary Committee, Jan. 22, 2015, www.digital4th.org/wp-content/uploads/2015/02/ECPA-support-letter-House-judiciaryjan2015-v2-clean.pdf; letter from Mary Jo White, Chair, Securities and Exchange Commission, to Patrick J. Leahy, Chairman, Senate Judiciary Committee, Apr. 24, 2013, www.cdt.org/files/file/SEC%20ECPA%20Letter.pdf. Recently, the House unanimously passed the Email Privacy Act, which requires government officials to obtain a warrant before gaining access to users’ email, but the legislation may encounter difficulties in the Senate. See Andrea Noble, “Email Privacy Act May Face Hurdles in Senate After Unanimous House Passage,” Wash. Times, Apr. 28, 2016, www.washingtontimes.com/news/2016/apr/28/email-privacy-act-may-face-hurdles-senate-after-un/ (“‘Members of this committee on both sides of the aisle have expressed concerns about the details of this reform, and whether it’s balanced to reflect issues raised by law enforcement,’ said Sen. Charles Grassley, the chairman of the Senate Judiciary Committee.”).

  2.  Rosmarin Interview, supra note 18.

  3.  Id.

  4.  Gill Interview, supra note 13.

  5.  Daniel Justin Solove, GW Law, www.law.gwu.edu/daniel-justin-solove; Orin S. Kerr, GW Law, www.law.gwu.edu/orin-s-kerr.

  6.  See Orin S. Kerr, “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution,” Mich. L. Rev. 102 (2004): 858–59 (2004); Daniel J. Solove, “Fourth Amendment Codification and Professor Kerr’s Misguided Call for Judicial Deference,” Fordham L. Rev. 74 (2005): 747.

  7.  See Stuart Elliott, “A Campaign for Miller Lite Goes Back to Basics and Beyond the Appeal to Younger Consumers,” N.Y. Times, Mar. 5, 1999, www.nytimes.com/1999/03/05/business/media-business-advertising-campaign-for-miller-lite-goes-back-basics-beyond.html.

  8.  Olmstead v. United States, 277 U.S. 438, 466 (1928); Berger v. New York, 388 U.S. 41, 51 (1967).

  9.  Berger, 388 U.S. at 44; S. Rep. No. 90-1097, at 2155–56 (“[T]he Supreme Court has effectively prevented the use in both Federal and State courts of intercepted communications by wiretapping … but in doing so has laid out guidelines for the Congress and State legislatures to follow in enacting wiretapping and electronic eavesdropping statutes … Even … existing statutes … must now be reformed in light of the standards for constitutional electronic surveillance laid down by the Supreme Court in Berger.”); see also Erin Murphy, “The Politics of Privacy in the Criminal Justice System: Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions,” Mich. L. Rev. 111 (2013): 538 (“[T]he Berger opinion … exemplif[ies] a process by which the Court declares that an investigative method implicates a Fourth Amendment interest and then sketches the contours of a constitutional statute regulating the activity.”); Donald A. Dripps, “Justice Harlan on Criminal Procedure: Two Cheers for the Legal Process School,” Ohio St. J. Crim. L. 3 (2005): 148 (“Those sympathetic to law enforcement feared that Berger v. New York and Katz v. United States meant the end of electronic surveillance. The objective of Title III’s proponents was to provide procedural safeguards that would survive constitutional challenge in the Supreme Court…”).

  10.  See Olmstead, 277 U.S. at 466; Berger, 388 U.S. at 44.

  11.  See Dripps, supra note 30 at 1091–92; William J. Stuntz, “The Pathological Politics of Criminal Law,” Mich. L. Rev. 100 (2001): 539.

  12.  See, e.g., Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 453–54 (1990). For more on this point, see supra Chapter 3.

  13.  The factual account is taken from the reported decisions in Utah v. Sims (Sims I), 808 P.2d 141 (Utah Ct. App. 1991), and Sims v. Collection Division of the Utah State Tax Commission (Sims II), 841 P.2d 6 (Utah 1992).

  14.  Sims I, 808 P.2d at 142–46.

  15.  Id. at 147–48 (“Sims argues that the lack of statutory authority renders suspicionless roadblocks improper under the Utah Constitution.”); Sims II, 841 P.2d at 9 (“Other states have inferred legislative authority to conduct roadblocks from such statutory grants of general police powers.”).

  16.  Sims I, 808 P.2d at 147–49; see also Sims II, 841 P.2d at 7, 9n4.

  17.  Sims II, 841 P.2d at 9; Sims I, 808 P.2d at 141, 142–43, 148, 149.

  18.  R. v. Spencer, 2014 S.C.C. 43 ¶¶ 2, 68 (Can.).

  19.  On these broad grants of authority, see supra Introduction, Chapter 2.

  20.  Kent v. Dulles, 357 U.S. 116, 128–129 (1958).

  21.  Spencer, 2014 S.C.C. at ¶¶ 36, 62, 71.

  22.  U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”); Virginia v. Moore, 553 U.S. 167, 168 (2008).

  23.  E.g., California v. Greenwood, 486 U.S. 35, 43–44 (1988) (“We reject … Greenwood’s … argument … that his expectation of privacy in his garbage should be deemed reasonable as a matter of federal constitutional law because the warrantless search and seizure of his garbage was impermissible as a matter of California law … We have never intimated … that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs.”); see also, e.g., Moore, 553 U.S. at 176 (2008) (“[W]hile States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections.”); Katz v. United States, 389 U.S. 347, 360 (1967) (establishing the “reasonable expectation of privacy” standard); William Baude and James Y. Stern, “The Positive Law Model of the Fourth Amendment,” Harv. L. Rev. 129 (2016): 1823 (“Fourth Amendment protection should depend on … legislation … statutes, and other provisions of law generally applicable to private actors, rather than a freestanding doctrine of privacy fashioned by courts on the fly.”). The question of what constitutes a search is discussed further in Chapter 9.

  24.  Berger, 388 U.S. at 58–62; United States v. United States Dist. Ct. (Keith), 407 U.S. 297, 322; see also Samuel J. Rascoff, “Domesticating Intelligence,” S. Cal. L. Rev. 83 (2010): 589–90 (“[I]n the Keith case, the Supreme Court expressed the view that the Fourth Amendment does apply in cases ‘deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of government.’ But … the Court … express[ed] ‘no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.’ As a practical matter, Congress partially plugged this gap in 1978 when it passed [FISA].…” (quoting Keith, 407 U.S. at 308, 309 (1972)).

  25.  See H.R. 4952—Electronic Communications Privacy Act of 1986, List of Sponsors, Congress.gov, www.congress.gov/bill/99th-congress/house-bill/4952/cosponsors (last visited Apr. 25, 2016) (showing a mix of Republican and Democratic cosponsors); To Pass H.R. 5037, After Substituting for Its Text the Language of S. 917 as Amended, GovTrack.us, www.govtrack.us/congress/votes/90-1968/s439 (showing a bipartisan 72–4 Senate vote to pass the Omnibus Crime Control and Safe Streets Act of 1968).

  26.  On deference, see supra Introduction, Chapter 3.

  27.  Ornelas v. United States, 517 U.S. 690, 699 (1996).

  28.  United States. v. Perry, 449 F.2d 1026, 1037 (D.C. Cir. 1971), quoted in Gerald M. Caplan, “The Case for Rulemaking by Law Enforcement Agencies,” Law & Contemp. Probs. 36 (1971): 504.

  29.  Gill Interview, supra note 13.

  30.  Id.; see also, e.g., Sandra M. Stevenson, Antieau on Local Government Law, 2nd ed. (2015), § 1.01 (“The term ‘local government’ … refers to local entities that have been organized to exercise governing authority, delegated by the state through charter, state constitution or statute.”).