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Solove v. Kerr on the Fourth Amendment and New Technologies:
In a forthcoming symposium issue of the Fordham Law Review, my colleague Dan Solove and I debate the relative merits of constitutional rules versus statutory rules in the area of online privacy. The basic question is this: Which branch of government is likely to generate better rules regulating police investigations when technology is rapidly changing? The legislature or the judiciary?

  Last year, I argued in an article called "The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution" that Congress has the institutional advantage over courts, and would likely generate better and more balanced rules. Now Dan has responded, arguing that I am all wrong, and I have replied to his response (or did I respond to his reply? I can never remember such things).

  Anyway, you can read Dan's paper here: "Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference". You can read my short response to Solove (13 pages) here: "Congress, the Courts, and New Technologies: A Response to Professor Solove".
frankcross (mail):
I believe yours is a surrebuttal.
8.24.2005 1:28pm
Carol Anne:
My own sense is that the "first draft" needs to come from the courts, because they can act on specific cases before them, hopefully producing just rulings.

However, in the aggregate, these will tend to be conflicting and incomplete over time. But, by that time, citizens will have become frustrated enough to elect Senators and Representatives with enough spine to do the hard work of threshing out a comprehensive, integral solution.

Personally, I don't have much confidence in elected legislators to put aside their parochialism to address really new and potentially catastrophic problems. They tend to dramatic solutions with good sound bytes, instead of really well-crafted legislation that incorporates the aggregate knowledge of people more qualified than themselves in the subject matter.

The current privacy issues on the Internet are, in fact, due to the assumption made by the original DARPA-contracted esigners to trust users to "do the right thing." They had in mind the military, where miscreants (like spammers, phishers, spyware authors) would be subject to clear constraints and the UCMJ. The technology scaled up to the World Wide Web we all know and use...but without the requisite design properties (e.g., verifiable identity) we need. That's why the Congress' "CAN-SPAM" act has been observed only in exception: It legislates behavior that the current technology cannot reliably enforce.
8.24.2005 4:19pm
Anonymous (mail) (www):
Please correct me if I'm wrong, but it appears that the math in Professor Kerr's, erm, surrebuttal is a bit off. If a court has in front of it a statute with 10 sections, and must vote to keep or strike each of those sections, wouldn't the correct number of combinations be 2^10 rather than 10 factorial? You would have 10 slots (sections) with two possibilities ("on" and "off) each, so you would multiply 2 possibilities x 2 possibilities x 2 possibilities ... 10 times, no?

This method would yield only 1024 combinations of sections for the hypothetical statute. Approximately 20 of those combinations would pass 4th Amendment muster according to Professor Kerr's 2% estimation. That's still a lot of possibilities, but not quite as overwhelming as the original 72,576 example.

Prof. Kerr, you have a great argument without the math. Maybe you should leave the factorials out in the final version.
8.26.2005 8:14pm