suprem~1.txt

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          of a substitution in favor  of a right to privacy,  Black recalls
          his dissenting opinion in Griswold  v. Connecticut. There he held
          that  the Constitution does not provide a "right to privacy" that
          protects  individuals  from laws  which  compromise  privacy. The
          conclusion of his dissenting opinion in Katz states:
               No general  right is created by  the [Fourth] Amendment
               so  as to give this  Court the unlimited  power to hold
               unconstitutional  everything   which  affects  privacy.
               Certainly  the  Framers,   well  acquainted  with   the
               excesses of governmental power, did not intend to grant
               this Court such omnipotent lawmaking authority as that.
               The history of governments  proves that it is dangerous
               to freedom to repose such powers in the courts.43
          Given Black's originalist position,  it is understandable that he
          could not be reconciled  with the Court's decision to  extend the
          protection of the Fourth Amendment to recording and wiretapping.
               Although  Black recognizes  the legitimate need  to regulate
          wiretapping,  he believed  that  the obstacles  presented by  the
          Berger  Court should have been  dealt with in  another manner. In
          particular, he is  concerned with the Court's  adoption of rights
          discourse. Rather than upholding a right  to privacy by expanding
          the  meaning of  "seizure"  to include  conversation,  presumably
          Black felt that  the Court  should have deferred  to Congress  in
          order that the law be updated by amendment to the Constitution.
               During the years following the decision in Katz, the Supreme
          Court  continued to uphold  civil rights,  such as  an individual
          right to privacy,  in the face  of technological developments  in
          other  domains. In fact, it  can be shown  that the Supreme Court
          has gradually  moved from policies  which tolerate  technological
          advances at the  expense of individual  rights to policies  which
          put  decisions in  the  hands of  individuals. In  the nineteenth
          century, the Court upheld statutes which called for the universal
          vaccination of citizens. It  also protected laws which authorized
          the  government to  sterilize criminals.  In the  early twentieth
          century, however, the Court  opposed sterilization on the grounds
          that basic human  rights outweigh any  potential harm to  society
          that  may come from the children of criminals. In recent decades,
          computerized data  banks  have  enabled  governments  to  compile
          extensive records on citizens without their knowledge or consent.
          While  upholding  the  need of  the  state  to  compile data  for
          specific  purposes,  the  Court  has  insisted   that  reasonable
          measures be taken to  maintain confidentiality. Just over fifteen
          years  ago,  the Court  decide that  a  woman's right  to privacy
          outweighs  the state's  interests  in  cases regarding  abortion.
          Finally,   with  the   recent  advancements   in  life-sustaining
          technologies,  the Court  has  upheld the  individual's right  to
                              
          ____________________

               42Id. at 373.
                 ___

               43Id. at 374.
                 ___

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          withhold treatment despite a conflict with the traditions of  the
          medical  profession.  In  general,  the  Court  has  displayed  a
          cautious attitude toward new  technologies in favor of individual
          rights. In  particular, the Court has  perceived the government's
          widespread use of computer technologies as a threat to individual
          privacy. Underlying these decisions, however, is a constitutional
          philosophy  which  favors  individual   rights  in  the  face  of
          technological change.44

          Congress and the Regulation of Government Surveillance

               Congress responded to  the decision of the  Supreme Court in
          Katz with Title III of the Omnibus Crime Control and Safe Streets
          Act of 1968.45 This  legislation was enacted to regulate  the use
          of  electronic  surveillance  by  law  enforcement  agencies.  By
          effectively   revising  the   Fourth  Amendment   to  incorporate
          wiretapping, the Court in Katz opened the way for the legislature
          to enact regulations without recourse  to the lengthy process  of
          constitutional amendment. Title III of Omnibus was only a part of
          an act of Congress which found  that "the high incidence of crime
          in  the  United States  threatens  peace,  security, and  general
          welfare of the  Nation and its  citizens."46 While attempting  to
          find new ways to  "prevent crime," Congress tried to  balance the
          privacy  interests of the individual with the legitimate means of
          law enforcement by the state.
               Title III  was the first comprehensive  piece of legislation
          to   address  the   issue   of   communications   privacy.47   In
          particular, it protected only two types of communications against
          electronic  eavesdropping: (1)  telephone  conversations and  (2)
          face-to-face   communication.48   The    law   established    the
          requirement of a  warrant for  the interception of  wire or  oral
          communications  under circumstances  where there is  a reasonable
          expectation of  privacy.49 It  also laid out  specific procedures
          for  obtaining a  warrant, including  restrictions  to electronic
          surveillance which  limit its  use to  certain types  of criminal
                              
          ____________________

               44See D.  Jones Merritt,  The Constitution  in  a Brave  New
             ___                     __________________________________
          World: A Century of  Technological Change and Constitutional Law,
      ________________________________________________________________
          Oregon Law Review, Vol. 69, Num. 1 (1990).

               45 (Title III) 18 U.S.C.    2510-2520 (1968).

               4618 U.S.C. Title I

               47See   R.  W.   Kastenmeier,  D.   Leavy,  and   D.  Beier,
             ___
          Communications Privacy: A  Legislative Perspective, Wisconsin Law
      __________________________________________________
          Review 1989:715.

               4818 U.S.C.  2516.

               49Id.  2510.
                 ___

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          investigations.  In  this   way,  Congress  enacted   legislation
          designed  to  meet  the technical  demands  of  the  Berger Court
          regarding probable cause and to address the political concerns of
          the Katz Court regarding the protection of individual privacy.
               In a  short period of  time, technological change  proved to
          make Title III  inadequate. By restricting itself specifically to
          telephone wiretapping,  its regulations could not  be extended to
          new  communication  technologies  like  cellular  telephones  and
          electronic mail. As a result,  these communications did not  fall
          under   the   Fourth  Amendment's   protection   against  illicit
          government  surveillance. Hence, Title III was criticized for its
          failure to anticipate technological advancement.
               In order to address  the inadequacies of Title III, Congress
          instituted the  Electronic  Communications Privacy  Act  of  1986
          (ECPA).50 Its  primary  concern was  to  safeguard the  right  of
          individual privacy from erosion due to technological advancement.
          Hence,   it  extended   Fourth   Amendment   protection  to   new
          communication  technologies  such  as  cellular  telephones, data
          transmissions,  and  electronic   mail.  Unlike  the  design   of
          Title III,   Congress  tried   to  anticipate   potential  abuses
          associated with  developments  such as  multi-media  technologies
          which would fall under  more than one classification  of service.
          The  ECPA also expanded the  scope of sites  protected to include
          not only  public carriers  such as telephone  companies but  also
          private  services  such  as  corporate computers.  Prior  to  the
          enactment  of the ECPA, no federal statute addressed the issue of
          data  interception.  With  the  ECPA, electronic  mail  and  data
          transmissions   are  protected  in   manner  that  parallels  the
          protection   of   voice   communications.51   Hence,   government
          interception of  these types  of communication is  only permitted
          under  the restrictions  of  a warrant.  However, the  procedures
          differ  from  those  applicable  to  telephone  wiretapping.  For
          example,  court  authorization  for  data   interception,  unlike
          wiretapping,  can   be  based  upon  suspicion   of  any  federal
          felony.52
               In  addition  to  technological   change,  Congress  had  to
          consider political factors in drafting the ECPA. Protecting civil
          rights  is  not  without  its  difficulties.  During  the  Reagan
          Administration,  bills supported  by the Justice  Department were
          favored  while   ones  opposed   by  it  were   likely  defeated.
          Consequently, the  ECPA needed the  support of the  Department of
          Justice in order to be signed by the President. However, the ECPA
          bill   was  given   very   strong   support  from   corporations.
          (Communications providers  wanted to ensure  their customers that
                              
          ____________________

               5018 U.S.C.  2510-2520 (The ECPA is actually an amendment to
          Omnibus which leaves much of Title III intact).

               51Id.  2510(12).
                 ___

               52Id.  2518(3).
                 ___

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          the  new technologies  would  be  protected.)  As a  result,  the
          success  of the ECPA depended upon the support of civil liberties
          groups,  business interests,  and law  enforcement officials.  By
          enacting  the ECPA,  Congress not  only preserved  existing civil
          liberties  but  also  expanded  protection of  communications  to
          include government and private sector interception of data.53

          The Executive and the Powers of Law Enforcement

               The Constitution  of the  United States vests  the President
          with  the powers of the Executive, including the power to enforce
          the  laws.54  At the  time  the  Constitution was  ratified,  the
          Fourth Amendment was included  in order to protect  citizens from
          the unreasonable search and seizure of their goods  by government
          agents. With  the development of communication  technologies, the
          Executive  has  expanded  its  capabilities  to  engaged  in  the
          surveillance of  citizens. In  recent decades, the  Supreme Court
          has heard many cases which bear witness to the great interest law
          enforcement agencies have  in electronic surveillance.  Moreover,
          the  civil rights  movement bears  witness to the  great interest
          citizens  have in  preventing their  government from  becoming an
          Orwellian  state.  After   decades  of  unrestricted   electronic
          surveillance,  the Court's  decision in  Katz finally  opened the
          door  for the first legislation to regulate wiretapping under the
          Fourth  Amendment.  With  Title III  of  Omnibus  and  the  ECPA,
          Congress  placed limits upon the  powers of the  Executive in the
          name of an individual right  to privacy. Legal restrictions  were
          deemed  necessary  in  order  to  protect  individuals  from  the
          ceaseless surveillance of Big Brother.
               Given  that  the  ECPA  was designed  to  anticipate  future
          technological developments, it would  seem that a lasting balance
          between individual privacy  and government surveillance  has been
          struck.  Yet  the ECPA  did  not  anticipate  the development  of
          private  sector cryptology  along with  the growth  of electronic
          mail   services.   These   technological    developments   enable
          individuals to ensure the  privacy of their communication without
          recourse  to civil  rights legislation. A  warrant may  grant the
          power to access personal data, but it is  powerless to crack data
          encryption.  After  years of  negotiating  restrictions upon  the
          legal  powers  of  the   Executive  in  the  wake   of  expanding
          communications  technologies, law  enforcement agencies  now find
          themselves seeking restrictions upon the technological  powers of
          individuals in the wake of expanding civil rights.
               Government interest in restricting cryptology dates back  to
                              
          ____________________

               53See Communications Privacy, pp. 733-737.
                 ___

               54Article II   2 declares "The President  shall be Commander
          in Chief of the Army  and Navy of the United States ...  ." while
           3 states  "... he shall  take Care that  the Laws be  faithfully
          executed, ... ."

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          legislation banning the export of cryptologic devices and related
          research.55 At  that time,  the government  saw  cryptology as  a
          means  to  protect  classified  information.  These  laws  placed
          cryptology  on  a list  of  munitions, giving  the  President the
          authority  to  regulate  its  development  and  deployment.56  In
          recent decades, the National Security Agency (NSA) has been given
          executive  responsibility to  regulate cryptologic  standards for
          classified and national security information. It develops its own
          cryptosystems  and appraises publicly  available cryptosystems in
          order  to  offers  private  sector corporations  a  guarantee  of
          security. In  1977, the NSA endorsed the Data Encryption Standard
          (DES)  issued  by the  National  Bureau  of Standards  (NBS)  for
          nonclassified  government  and   private  sector   cryptosystems.
          However,  recent  technological   developments,  especially   the
          widespread  growth of  powerful  private  sector computers,  have
          forced the  NSA  not to  renew  its guarantee.  In light  of  the
          inadequacy   of  DES,  the  NSA  made  plans  to  issue  its  own
          cryptosystem  for both government and private sector information.
          It argued that cryptologic research, development, and use by  the
          private sector threatens government security. In other words, the
          NSA is  seeking to  control all  cryptology, even  private sector
          cryptosystems,  due to  the  reliance of  national security  upon
          economic strength. To this end, the Reagan Administration drafted
          the   National  Security   Decision  Directive   145.57  It   was
          withdrawn, however,  after  being  severely  criticized  for  the
          imbalance  of authority  it gave  to the  President over  private
          sector information.58
               In 1987,  Congress enacted  the Computer Security  Act which