FC: Response to WSJ on Jeffrey Rosen's op-ed on Kyllo decision

[Declan McCullagh <declan () well com>]

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Background: http://www.politechbot.com/cgi-bin/politech.cgi?name=kyllo
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Date: Tue, 19 Jun 2001 16:11:29 -0400
From: "Phil Corwin" <pcorwin () butera-andrews com>
To: declan () well com
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: 'editors () interactive wsj com'
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)




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