9. SURVEILLANCE TECHNOLOGY
1. P. D. Eastman, Are You My Mother? (1998).
2. Interview by Barry Friedman with Abdo Alwareeth, Mar. 17, 2015.
3. Id.
4. Id.
5. Id.
6. Id.
7. Id.
8. United States v. Pineda-Moreno, 591 F.3d 1212, 1216 (9th Cir. 2010).
9. Id. at 1121, 1124, 1126 (Kozinski, J., dissenting).
10. Lindsay Miller et al., Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned (2014), 1, www.justice.gov/iso/opa/resources/472014912134715246869.pdf (quoting Charles Ramsey); Kyllo v. United States, 533 U.S. 27, 37 n.3 (2001) (citing National Law Enforcement and Correction Technology Center, www.nlectc.org/techproj/) (radar flashlights); Jay Stanley and Catherine Crump, ACLU, Protecting Privacy from Aerial Surveillance: Recommendations for Government Use of Drone Aircraft (2011), 68, www.aclu.org/files/assets/protectingprivacyfromaerialsurveillance.pdf; Conor Friedersdorf, “Eyes Over Compton: How Police Spied on a Whole City,” The Atlantic, Apr. 21, 2014 (“We literally watched all of Compton during the times that we were flying.” (quoting Ross McNutt of Persistence Surveillance Systems)); Ted Bridis, “FBI Is Building a ‘Magic Lantern,’” Wash. Post, Nov. 23, 2001, at A15, www.washingtonpost.com/archive/politics/2001/11/23/fbi-is-building-a-magic-lantern/ca972123-83a8-46d8-b95c-c2edafda0fea/; John Schwartz, “Privacy Debate Focuses on F.B.I. Use of an Internet Wiretap,” N.Y. Times, Oct. 13, 2001, www.nytimes.com/2001/10/13/us/nation-challenged-legislation-privacy-debate-focuses-fbi-use-internet-wiretap.html; Craig Timberg and Ellen Nakashima, “FBI’s Search for ‘Mo,’ Suspect in Bomb Threats, Highlights Use of Malware for Surveillance,” Wash. Post, Dec. 6, 2013, www.washingtonpost.com/business/technology/2013/12/06/352ba174-5397-11e3-9e2c-e1d01116fd98_story.html; Christopher Soghoian, “Caught in the Cloud: Privacy, Encryption, and Government Back Doors in the Web 2.0 Era,” J. on Telecomm. & High Tech. L. 8 (2010): 401–402 (cell phone microphone); Pineda-Moreno, 617 F.3d at 1121 (Kozinski, J., dissenting).
11. See United States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring); id. at 962 (Alito, J., concurring in judgment).
12. Id. at 964 (Alito, J., concurring in judgment).
13. Olmstead v. United States, 277 U.S. 438, 456 (1928).
14. John Kobler, Ardent Spirits: The Rise and Fall of Prohibition (1993), 329 (“baby lieutenant”); Phillip Metcalfe, Whispering Wires: The Tragic Tale of an American Bootlegger (2007), 8, 19 (quoting Mayor Doc Brown).
15. Kobler, Ardent Spirits, supra note 14, at 329–30; Metcalfe, Whispering Wires, supra note 14, at 52–53; Olmstead, 277 U.S. at 457.
16. Kobler, Ardent Spirits, supra note 14, at 331; Metcalfe, Whispering Wires, supra note 14, at 94. The moniker may have had its roots in a detective novel, based on a Saturday Evening Post story, published in 1918. That book’s central mystery was the identity of a “whispering voice of low pitch and timber.” Henry Leverage, Whispering Wires (1918), 120. The defense attorney on Olmstead’s case also used the phrase. Metcalfe, Whispering Wires, supra note 14, at 206.
17. Olmstead, 277 U.S. at 464–65; Robert Post, “Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era,” Wm. & Mary L. Rev. 48 (2006): 42 (“The Taft Court would be widely and correctly perceived as a ‘bone dry’ institution grimly committed to the success of prohibition.”).
18. Olmstead, 277 U.S. at 464–66.
19. Olmstead, 277 U.S. at 473–74, 476, 479 (Brandeis, J., dissenting) (“Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”). One commentator argues that even though Brandeis was committed to enforcing Prohibition, he was equally “vehement on the question of preserving the integrity of law enforcement practices.” Post, “Federalism, Positive Law, and the Emergence of the American Administrative State,” supra note 17, at 138, 142.
20. Olmstead, 277 U.S. at 474 (Brandeis, J., dissenting); Eric Lichtblau, “Police Are Using Phone Tracking as a Routine Tool,” N.Y. Times, Mar. 21, 2012, www.nytimes.com/2012/04/01/us/police-tracking-of-cellphones-raises-privacy-fears.html (describing the California manual).
21. Goldman v. United States, 316 U.S. 129, 135 (1942) (upholding use of the “detectaphone”); id. at 139, 141 (Murphy, J., dissenting); Silverman v. United States, 365 U.S. 505, 506, 512 (1961) (quoting Silverman v. United States, 275 F.2d 173, 178 (D.C. Cir. 1960)).
22. Harvey A. Schneider, “Katz v. United States: The Untold Story,” McGeorge L. Rev. 40 (2009): 13.
23. Id. at 13–14.
24. Katz v. United States, 389 U.S. 347, 351–53 (1967) (“The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied…”); see also Jed Rubenfeld, “The End of Privacy,” Stan. L. Rev. 61 (2008): 105 (“Modern Fourth Amendment doctrine begins with Katz v. United States.”).
25. See Orin Kerr, “Four Models of Fourth Amendment Protection,” Stan. L. Rev. 60 (2007): 504 (“[F]our decades have passed since Justice Harlan introduced the test in his concurrence in Katz v. United States, the meaning of ‘reasonable expectation of privacy’ remains remarkably opaque.”); Sherry F. Colb, “What Is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy,” Stan. L. Rev. 55 (2002): 123 (noting that the Court must address “the instability and poverty of Fourth Amendment doctrine”).
26. Katz, 389 U.S. at 351. The iconic language of a “reasonable expectation of privacy” actually comes from the concurring opinion of Justice John Marshall Harlan II. Id. at 360 (Harlan, J., concurring).
27. See Colb, “What Is a Search?,” supra note 25, at 122 (arguing that the Court treats the risk of exposure “as tantamount to an invitation for that exposure” and treats “exposure to a limited audience as morally equivalent to exposure to the whole world”); California v. Ciraolo, 476 U.S. 207, 209, 211–14 (1986); id. at 224 (Powell, J., dissenting).
28. California v. Greenwood, 486 U.S. 35, 38, 40–41 (1988).
29. United States v. Knotts, 460 U.S. 276, 278, 281–82 (1983).
30. Dow Chemical Co. v. United States, 476 U.S. 227, 229–31 (1986) (emphasis added); id. at 242n4 (Powell, J., concurring in part and dissenting in part) (quoting Dow Chemical Co. v. United States, 536 F. Supp. 1355, 1357n2 (E.D. Mich. 1982)).
31. Knotts, 460 U.S. at 284–85.