[1] Maria Helena Barrera, JD Central University, Ecuador. LL.M. Computer Law, Montpellier I University, France. LL.M. Industrial Property Law, Grenoble II University, France. LL.M. Intellectual Property, Franklin Pierce Law Center. Jason Montague Okai, JD Candidate, MIP Candidate, Franklin Pierce Law Center. The authors wish to express their gratitude to the following individuals for their support, understanding and patience: Professor Hugh Gibbons, Professor Richard Hesse, Cynthia Lewis, M.S.L.I.S., Ron Neary, Esq.
[2] Olmstead v. U.S. 277 U.S. 438, 473 (1928), Justice Brandeis, dissenting.
[3] See Alan F. Westin. Privacy and Freedom. Atheneum, 1966. At 24, "Just as social balance favoring disclosure and surveillance over privacy is a functional necessity for totalitarian systems, so a balance that ensures strong citadels of individual and group privacy and limits both disclosure and surveillance is a prerequisite for liberal democratic societies."
[4] "For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." 389 U.S. 347, 351, 88 S.Ct. 507, 511
[5] Act of February 20, 1792, § 17, 1 Stat. 237.
[6] Ex parte Jackson, 96 U.S. 727, 6 Otto 727, 733, (U.S.N.Y. Oct Term 1877)
[7] Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507.
[8] Lawrence Lessig. Reading the Constitution in Cyberspace. 45 Emory L.J. 869, 871. Professor Lessig identify as translation the method used by Justice Brandeis in his dissenting opinion in Olmstead: "Brandeis first identifies values from the original Fourth Amendment, and then translated these values into the context of cyberspace. He read beyond the specific applications that the Framers had in mind, to find the meaning they intended to constitutionalize."
[9] Id. at 874. "Even the most careful translators must at some stage concede there is not enough left from the framing regime to guide anymore. Translation may well have its limits, and these limits will be of great, and I fear, of terrible significance for us today."
[10] Carl H. Scheele. A short history of the mail service. Smithsonian Institute Press. 1970. Envelopes of clay, were Assyrian, where "[t]he tablets -cushion shaped paths nearly 3 inches square - where enclosed in clay envelopes bearing addresses.", at 8.
[11] Professor Le Stanc in France has used the simile before concerning a digital age problem. He advocates for a non-orthodox approach to digital age issues, in order to preserve sanctioned structures of protection into the limits of rational analogies. See, Christian Le Stanc, La proprieté intellectuelle dans le lit de Procuste. Observations sur la proposition de loi du 30 juin 1992 relative à la protection des "créations réservées". Dalloz 1993, Cahier 4.
[12] E.g. Ian C. Ballon. The emerging law of the Internet. "What Mode of Communication Does Email Replace?" 507 PLI/Pat 1163, 1263
[13] Royal Van Horn. Electronic gadgets never forget. "Even those previous users who had properly signed off from their e-mail servers had failed to clear out all the other computer memory locations: the Web browser's "Go: Last" memory, the Web browser's bookmark memory, the computer's scrapbook memory, and so on. The previous users had left the computer equivalent of a paper trail leading to everything they had just done. It was a little scary and surrealistic. 26 WTR Hum. Rts. 26, 27 (emphasis added)
[14] David J. Loundy. E-LAW 4: Computer information systems law and system operator liability. "Unlike the U.S. mail, electronic mail is almost always examinable by someone other than the sender and the receiver of the message." 21 Seattle U. L. Rev. 1075, 1080
[15] See e.g., Daniel B. Yeager, Search, Seizure and the Positive Law: Expectations of Privacy outside the Fourth Amendment. 84 J. Crim. L. & Criminology 249, 304
[16] Internet providers and BBS have been analogized to broadcasters (Doe v. America Online, Inc., 25 Med. L. Rptr. 2112 (Fl. Cir. Ct. 1997)), publishers (Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139 (S.D.N.Y. 1991)), bookstore owners (Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Med. L. Rptr. 1794, 1796 (N.Y. Sup. Ct. 1995)). The analogy with postal service systems seems however not to have be exploited...
[17] See Barry Fraser. Rules of the road for navigating the information superhighway. "[Y]our e-mail message may be handled by several different online services during delivery. The sysop of each of these systems may view e-mail under the above exceptions to the ECPA. Additionally, the message may be intercepted if either the sender or recipient consents. So, even if you do not consent yourself, the person you sent the e-mail to may have consented to the disclosure of the message." 26 WTR Hum. Rts. 17, 18 (emphasis added)
[18] E.g., Nicole A. Wong. Responding to subpoenas: a Sysop's primer for protecting user privacy under the ECPA. 2 No. 10 GLCYLAW 3
[19] 26 Cap. U. L. Rev. 347, 352 "[R]eading the E-mail message may be a legitimate, and even necessary, function of a sysop monitoring the traffic load on the network to ensure proper functionality."
[20] See e.g., Randolph S. Sergent, Note, A Fourth Amendment Model for Computer Networks and Data Privacy, 81 Va. L. Rev. 1181, 1226 (1995)
[21] C. Edward Good. An e-mail education. What You Don't Know About E-Mail Can, and Will, Hurt You "By the year 2001, the number of Americans using e-mail will total 135 million, according to one estimate. The will send 500 million messages each day." 35-FEB Trial 28, 29
[22] Jeffrey H. Reiman.Driving to the panopticon: A philosophical exploration of the risks to privacy posed by the highway technology of the future. "The very fact of general visibility - being see able more than being seen -- will be enough to produce effective social control. [FN4] Indeed, awareness of being visible makes people the agents of their own subjection." 11 Santa Clara Computer & High Tech. L.J. 27, 28
[23] Cyberights. Defending free speech in the digital age. Random House. 1998. "It's well understood that freedom of speech means the right to say almost anything you choose; it is less commonly recognized that freedom of speech also means freedom to choose how you communicate what you want to say." at 133.
[24] Katz v. U.S., 389 U.S. 347, 361, 88 S.Ct. 507, 516 (Justice Harlan concurring).
[25] For a comprehensive list of critics, see Thomas K. Clancy. What does the Fourth Amendment protect: Property, privacy, or security? 33 Wake Forest L. Rev. 307, 369, Fn. 234.
[26] Joel C. Mandelman. Lest we walk into the well: Guarding the keys encrypting the constitution. To Speak, Search & Seize in Cyberspace.. "No one has a constitutionally protected right to send anonymous e-mail ... No one has asserted that these prohibitions are interfering with the free flow of political debate and there is no reason to think that limits on the use of a brand new technology, the past absence of which has not in any way inhibited the most vigorous debate of all issues in this country, will suddenly cause that debate to be stifled." 8 Alb. L.J. Sci. & Tech. 227
[27] See, Daniel R. Rua. Comment: Cryptobabble: How Encryption Export Disputes Are Shaping Free Speech for the New Millennium . 24 N.C.J. Int'l Law & Com. Reg. 125. In a non-orthodox light, a valuable panorama about cryptography is offered by accessing the homepage of The CryptoRights Organization. "Security for Human Rights and human rights for Cryptographers." Available at http://www.cryptorights.org
[28] Cf. Robert Reilly. Mapping legal metaphors in cyberspace: Evolving the underlying paradigm. Citing Attorney General Janet Reno: "Encryption can frustrate completely our ability to lawfully search and seize evidence and to conduct electronic surveillance, two of the most effective tools that the law and the people of this country have given to law enforcement to do its work..." 16 J. Marshall J. Computer & Info. L. 579, 588
[29] The ECPA being an incidental legislation, not directed to clarify user privacy. The limits that it impose over System Operators could not be considered as a appropriate structure, neither in scope, nor in deepness.
[30] E.g., AOL's Eight Principles of Privacy. Available at http://legal.web.aol.com/policy/aolpol/privpol.html (Visited May 1999).
[31] Jeremy Pomeroy Online anonymity can be illusory under current law, ISP policies. 4 No. 12 MMEDIAST 1. "In any event, whatever protections ISPs do offer by way of their "privacy policies" are typically subject to change. ISPs customarily reserve the right to revise their terms and conditions of use on notice to subscribers. Therefore, an unwary user relying on a certain level of protection might, if he or she wasn't paying attention, find that the intimate details he or she had purposely or inadvertently revealed about him or herself were suddenly available to third parties."
[32] Minnesota v. Olson, 495 U.S. 91, 95 (1990) 1