Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008   Jay Dratler, Jr.  
For permission, see CMI.

Questions and Notes on the Fourth Amendment

1.  The fundamental standard for assessing Fourth Amendment claims of privacy is the "reasonable expectation of privacy" standard of Katz v. United States, which is noted in both Crowley and McNulty (In re Askin).  On what does/should a citizen's reasonable expectation of privacy depend: common understanding, available technology, or the law?

How much does/should the law influence what expectations of privacy are reasonable?  When Congress excepted cordless-phone communications from the protection of the Electronic Communications Privacy Act before 1994, did that mean that those communications had no "reasonable expectation of privacy"?  When Congress removed those exceptions in 1994, did expectations of privacy in cordless-telephone conversations suddenly become "reasonable," thereby invoking Fourth Amendment, as well as statutory protection?  Do Sections 2510(16) and 2511(2)(g) still raise some doubt about privacy of cell-phone communications?

2.  What about cell phones?  Before the FCC adopted the regulations under 47 U.S.C. 302a, set out above, were expectations of privacy in cell-phone communications unreasonable?  Did they become reasonable when Congress passed the statute?  when the FCC adopted a the regulations?  Or did/will they become reasonable only after all existing interception equipment (i.e., "scanners") has become broken or obsolete?

3.  More generally, can Congress "switch on" or "switch off" Fourth Amendment protection simply by providing civil and criminal penalties (and a statutory exclusionary rule) for interception of communications using certain technologies and not others?  Does Congress' policy-making role, to which the Fourth Circuit in McNulty (In re Askin) deferred, subsume the courts' responsibility to insure minimum standards of Fourth Amendment protection?  Or does/should the Fourth Amendment set a "floor" for the protection of privacy that Congress cannot vary?

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