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Surveillance Law in America

Surveillance law in American courts desperately need a new foundation. Surveillance law in American courts were heavily predicated from the old-fashioned telephones. In 1967, in Katz v. United States, the Court stated the fourth amendment protected the content of telephone conversations. If law enforcement wanted access to the content of a telephone conversation then a warrant would be required. Yet, 12 years later, in Smith v. Maryland, further complications arose which was whether the governments collection of dialed digits with a pen register resulted in a “search.” The Court created the third party doctrine and because the digits dialed themselves and the content of the conversation itself was not revealed, it did not constitute as a search. Both of these landmark cases paved the way for courts in understanding how to handle the complexities of electronic surveillance law.  But communication technology has become significantly more challenging to manage.

The advent of the internet essentially collapsed the foundation of both cases: Katz and Maryland. The internet communication differs because it uses end to end frameworks. Each side manages their own functionality which provides a major transformation  to communication in technology. However, this creates a host of problems for surveillance law. Web browsing, chatrooms, emails, etc. only represent some of the platforms we can communicate via internet. These functionalities further complicate what constitutes as content versus non content and how to apply the third party doctrine.

The internet’s architecture is vastly different than that of the phone network. The phone is a circuit-switched network, where each communication relies on a circuit that is built and exclusively used during the call. While, the internet is a packed-switched network and the communication itself is broken into small packets that can be routed in different ways. The architecture itself  challenges principles such as the third party doctrine because it is difficult to grasp what constitutes in knowing if a third party relationship is met and the distinction of content versus non content. A deeper analysis is required and is necessary when drafting legislation so that our laws can more adequately reflect these considerations.

Vishal Noticewala