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Katz is out of the Bag:
Katz’s Weaknesses & the Rapidly Emerging Technology of Today and the Future. 

Robert Keates                                                                                     Spring, 2005

 

Section I - Introduction
We live in a world that is becoming more and more dependant on technology each day.  As technology becomes more advanced, it also becomes more intrusive.  Decades ago, few would have thought it possible to order food and clothes from your living room or download images of almost any neighborhood in the United States via a satellite link website on a home computer.i   But these devices are not solely used by the tech-savvy citizen. 
Many police practices today involve technologies unknown in 1776, and its use could not have been foreseen by the founding fathers.  A wide variety of technologies are utilized by law enforcement agencies to monitor, detect, and deter crime and criminals.  These include thermal imaging devices, facial recognition software, city-wide closed circuit cameras, drug detecting dogs, and passive alcohol detectors.  Some of the latest modern gadgets include long range gun detectors, heartbeat detectors, and molecular detectors, used to monitor air molecules of drugs from a fair distance.  Although these methods are physically non-intrusive, they can still be turned on law-abiding citizens, especially when law enforcement acts without suspicion in monitoring everyone in an area.  For many, this presents privacy problems as well as fears of an Orwellian big brother society.   While this paper will not advocate a big brother government, nor its effects upon private life, it will center on the how the courts have attempted to harness and control the law regarding emerging technology, and its rapid invasion of American life.
The courts have long struggled with Fourth Amendment protections against the challenges posed by emerging technologies.  As technology continues to develop on a day to day basis, courts have attempted to stretch Fourth Amendment protections to guard the legitimate privacy interests of the people.  Balanced against these interests are the efforts of law enforcement to detect and rout out crime.  The early effects of this balancing test gave rise to broad privacy interests, articulated in U.S. v. Katz.   Katz utilized a two prong test to determine a privacy interest: a subjective expectation of privacy by the individual, and an objective privacy interest by society.   The Katz test has been the guiding hand of modern law enforcement searches, credited and widely praised for revolutionizing the Fourth Amendment. 
This paper will argue the weakness of Katz in light of the rapidly emerging technology of today and the future.  The paper will establish this in two distinct but related arguments.  First, that the courts have misapplied Katz by focusing on the ‘type’ of information or evidence that is revealed by the technology, rather than the ‘method’ used by the technology to obtain the evidence.    This approach greatly limits privacy, and when paired with the court’s ‘general use’ inquiry, leads to a judicially created time-bomb that decreases privacy as technology increases.  Implicit in this argument is the notion that pre-Katz property based law may actually provide more privacy protections than present day Katz.   The second argument asserts that the courts have misapplied the objective prong of the Katz test by basing society’s reasonable expectation of privacy on norms that are at odds with the general population and common sense.  In doing so, courts have ignored basic sentiments of the population and reduced Fourth Amendment privacy.
Part II of this paper will provide a background and recount the history of the Fourth Amendment, starting with pre-Katz case law.  The paper will then discuss Katz, and its progeny, up until the early 21st century.   Part III will introduce new technologies employed by various law enforcement organizations.  Each piece will be described and discussed, including the operation, detection capabilities, and where law enforcement has used the technology.  Part IV will explore the theses listed above, with regard to each new piece of technology.  Each item will undergo a traditional Katz analysis, a suggested neo-Katz analysis, and will be examined under pre-Katz law.   Part V will conclude the discussion, offering suggestions, and provide insight into collateral issues involving the Fourth Amendment and emerging technologies.
The ‘type of information detected’ and the ‘method used by the technology to detect’ themes are present throughout the paper.  In order to provide a clear distinction before the paper delves into the issues, it is helpful to discuss each theory, and provide names for each.  Thus far, courts have relied on the ‘type of information revealed’ by a technological search when assessing Fourth Amendment protections.  Due to this deference, the ‘type of information revealed’ will be dubbed a Traditional Katz Analysis.  For example, consider an officer using a drug sniffing canine.  The ‘type of information revealed’ would be the drugs that the dog is capable of detecting.  The same is true of a device, such as a thermal imaging unit.  The nature of evidence detected is what is relevant in a traditional Katz analysis.  Conversely, the ‘method used to obtain the information’ is how the technological device operates.  The capabilities of the device are relevant, and how intrusive those capabilities are.  Under the dog-sniff example above, the training techniques, success rates, and circumstances under which the dog is exposed to the suspected area are all to be considered.  This aspect has been routinely ignored by the courts, and will be called a neo-Katz analysis.


i Google unveils satellite map feature, CNN, April 5, 2005, at https://www.cnn.com/2005/TECH/internet
/04/05/google.maps.ap/index.html.  Terraserver.com has offered this feature for years, although only for subscribers.

389 U.S. 347 (1967).

Katz, 389 U.S. at 361.

Kyllo v. United States, 533 U.S. 27, 34 (2001).


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