[Orin Kerr, February 6, 2007 at 8:41pm] Trackbacks
Alito Reflects on His First Year:
In the latest Legal Times, Tony Mauro has a very interesting interview with Justice Alito about Alito's first year on the Court. Definitely worth reading. I think Alito's take on the Court's docket and role of the cert pool is exactly right, too. (LvHB)

  UPDATE: While I'm on the topic of agreeing with Justice Alito, let me point out this interesting comment from him after presiding over GW's moot court last week, as reported by the GW Hatchet:
  Alito said that the [moot court] case was very relevant to modern law. What constitutes a "search and seizure" online is a critical law debate and is constantly reshaping the Fourth Amendment, he said.
  "Now we're entering this new virtual world," Alito said, "and we have to translate the precedents and principles we have dealing with physical grounds to the world of electronic communication."
Xenos:
Interesting that he doesn't think SCOTUS decide enough cases.
2.6.2007 10:03pm
Kati B.:
As the moot court competitor who attempted to convince Alito &Co. (ultimately unsuccessfully) that there is a reasonable expectation of privacy in secured internet chat rooms, I think it will be fascinating to see how the court attempts to apply traditional 4th amendment jurisprudence to the virtual world. Many of the Court’s 4th amendment decisions don’t seem to be at all useful when applied to computers. For example, of the 3 factors that the Oliver Court says should be considered in assessing whether a reasonable expectation of privacy exists (the intention of the Framers, the uses to which the individual has put a location, and “our societal understanding that certain areas deserve the most scrupulous protection from government invasion.”), 1 and 3 seem utterly worthless to me in evaluating privacy as it applies to computers. Similarly, the Court’s discussions regarding the home and surrounding curtilage don’t seem to be obviously applicable to the virtual world. I think that ultimately what will happen is that the Court will try to analogize as much as possible (i.e. e-mail is protected because it is like real mail), but what is the proper analogy for a chat room? A password protected message board? Instant messages? There simply aren’t adequate “real world” analogies that can be drawn to much of the technology in use today, and ultimately the court is going to have to move beyond “translating” current principles and forge some new territory. If the Court is looking to take on more cases, they could probably find some good ones in this area.
2.7.2007 12:57am
18 USC 1030 (mail):
Kati,

I think at some point the legislature is going to have to tackle the issue and create some kind of framework to govern the investigative techniques applied to certain types of electronic communications/data.

I don't see why the legislature could not say encrypted communications are entitled to protection X, non-encrypted password protected communications are entitled to Y, etc. Or to reflect the nature of these statutes, it'd probably be constructed such that:

No person shall decrypt to attempt to decrpt encrypted communications of a third party, unless they are a law enforcement officer acting with authority X (order, subpoena, warrant, etc).


No person shall willfully/purposely intercept or attempt to intercept "live" internet comunications. With a law enforcement excpetion requiring some type of court order.

I'm not sure how far away such legislation is. It'd seem that congress will eventually attempt to do this, if for no other reason, to limit the executive branch. Obviously there will be difficulty with such statutory construction in order to define terms specific enough to apply to various electronic communication techniques--as well as to be loose enough to actually include evolving technology. I admit, I have no idea how to do that.
2.7.2007 2:13pm