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SUMMARY:

... While the privacy concerns raised by advances in surveillance and

information technologies are widely recognized, recent developments have led to

a convergence of these technologies in many situations, presenting new

challenges to the right to privacy. ... The Note first discusses the right to

privacy, personal information, and surveillance technology separately, noting

ways that new technologies create privacy concerns. ... An unreasonable search

is an intrusion on an individual's right to privacy. ... While the Katz doctrine

was a response to the Court's recognition that technology could make an invasion

of privacy possible without physical intrusion, recent technological advances in

surveillance equipment make the effectiveness of the Katz test questionable. ...

As in the field of surveillance technology, new developments in the use of

personal information increase the potential for an infringement of information

privacy. ... One new technology with the potential to diminish individuals'

anonymity greatly is the smart card. ... Even if the objective prong of the Katz

test is satisfied, a subject still must take affirmative protective steps to

display a subjective expectation of privacy against surveillance. ... This

surveillance technology, therefore, invades an individual's privacy interest

against intrusion without infringing upon his legal right to privacy. ... When

activity-based surveillance generates personal information, and when information

technology allows surveillance uses of existing personal information, privacy

concerns that formerly applied to only one of these fields now apply to both.

...

TEXT:

[*975]

While the privacy concerns raised by advances in surveillance and information

technologies are widely recognized, recent developments have led to a

convergence of these technologies in many situations, presenting new challenges

to the right to privacy. This Note examines this convergence of surveillance and

information technologies and its potential impact on individual privacy

interests.

The Note first discusses the right to privacy, personal information, and

surveillance technology separately, noting ways that new technologies create

privacy concerns. The Note then describes the merging of surveillance and

information technologies and the resulting convergence of two formerly distinct

privacy issues. Finally, the Note examines existing protections for privacy,

considers why they are insufficient, and proposes measures to enhance the

constitutional protection of privacy interests to address these new

technologies.

"Privacy makes possible individuality, and thus, freedom." n1

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n1 Robert S. Peck, The Right to Be Left Alone, 15 Hum. Rts. 26, 27 (1987).

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Introduction

Technological advances are changing the face of American society dramatically.

New technology affects individuals in countless ways, including the manner in

which they interact with each other, with businesses, and with the government.

While technology makes it possible to accomplish many tasks more efficiently,

and even to accomplish tasks previously not possible, these accomplishments do

not come without costs. Even though they provide solutions to current problems,

many technological developments often create new, sometimes unforeseen,

problems. As society incorporates these developments into its structure, the

problems that the developments create must be confronted so that the benefits of

technology outweigh its burdens. n2 One area in which new technology currently

is creating such problems [*976] is the right to privacy. n3

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n2 Ideally, society would confront the problems relating to a new technology

before the technology is introduced into everyday use. Unfortunately, because

these problems often are unforeseen, they sometimes are not addressed until at

least parts of society have suffered negative consequences. For example, the

invention of the automobile brought relief from the problem of horses littering

in the streets. Not until after the automobile was in widespread use, however,

did society recognize the problem of exhaust pollution. A more recent example of

such an unforeseen problem is the increase in the number of accidents at toll

plazas where E-Z Pass technology, see infra note 90, has been installed. See

Editorial, Daily Gazette of Schenectady, Dec. 24, 1996, in Associated Press,

Some Recent Editorial Opinion [sic] from Across New York, Jan. 1, 1997,

available in 1997 WL 2491560. Although outside the scope of this Note, this

example also demonstrates that the new technologies discussed herein often raise

issues other than privacy concerns.

n3 Concerns regarding technological advances encroaching upon the right to

privacy are nothing new. See, e.g., Olmstead v. United States, 277 U.S. 438, 466

(1928) (holding that wiretapping the residences of conspiracy defendants did not

constitute an unlawful search). Recent developments, however, have brought new

concerns to the issue of privacy and technology. See infra notes 53-125 and

accompanying text.

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Surveillance technology invokes privacy concerns perhaps more directly than any

other type of technology because surveillance equipment, by its very nature, is

designed to enable a surveillant to observe that which the subject does not

intend to be observed. n4 Although surveillance is a useful and necessary aspect

of criminal investigation, new developments in surveillance technology

equipment, such as magnetic gradient measuring, passive millimeter wave imaging,

back-scattered x-ray imaging, and radar-skin scanning, give rise to privacy

issues that previously did not exist. n5 Furthermore, although privacy concerns

stemming from surveillance activity traditionally involve government intrusion,

private actors increasingly have access to surveillance equipment and the

ability to invade individuals' privacy.

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n4 Although surveillance techniques certainly can be used to observe a subject's

public activities, a concern arises with the observation of private activities.

Another concern, as this Note will discuss, is that new technology can create

difficulties in demarcating those activities that are public and those that are

private. See infra notes 21-36, 53-83 and accompanying text.

n5 See infra notes 76-80 and accompanying text.

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A more recent concern regarding privacy rights is information privacy.

Information privacy involves an individual's personal information and his

ability to control that information. n6 Personal information includes data

assigned to an individual, such as a social security number, address, or

telephone number. Other personal information is generated on a day-to-day basis,

such as records of bank transactions, credit card purchases, phone calls, and

medical treatments. The [*977] "assigned" personal information may be used

primarily to identify a subject; the "generated" information may be used to

track the subject's activities and habits. This information then can be used,

unbeknownst to the subject, by government, businesses, and individuals for any

number of purposes. n7 As society becomes more dependent on computer databases

and electronic record-keeping, n8 an individual's ability to control who has

access to his personal information becomes more tenuous. n9 This inability to

control the use of personal information gives rise to the issue of information

privacy.

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n6 See infra notes 37-52, 84-104 and accompanying text; see also Sheri A.

Alpert, Privacy and Intelligent Highways: Finding the Right of Way, 11 Santa

Clara Computer & High Tech. L.J. 97, 106-07 (1995) ("The less opportunity

individuals have to limit access to their own personal information, or to limit

the amount of personal information they must give up to others (either

voluntarily, or by coercion), the less privacy they have."); Sandra Byrd

Petersen, Note, Your Life as an Open Book: Has Technology Rendered Personal

Privacy Virtually Obsolete?, 48 Fed. Comm. L.J. 163 (1995) (addressing the

threat to individual privacy presented by the collection, processing, and

dissemination of personal information through computers).

n7 These purposes may range from relatively innocuous ones, such as targeting

consumers based on buying habits, to more disturbing possibilities, such as

determining at what times individuals typically are away from their homes. See

infra notes 84-104 and accompanying text.

n8 One commentator has classified the current proliferation of advances in

information technology as the "metamorphosis of America into an

information-based society." Peck, supra note 1, at 27.

n9 See infra notes 85-88, 94-96 and accompanying text; see also Randolph S.

Sergent, Note, A Fourth Amendment Model for Computer Networks and Data Privacy,

81 Va. L. Rev. 1181, 1182 & n.2 (1995) ("Although no law inherently requires us

to sacrifice privacy to developing technology, we certainly have less control

over personal information than we once had." (citing Larry Tye, Privacy Lost in

High-Tech Era, Boston Sunday Globe, Sept. 5, 1993, at 1, 18-19)). Parties

accessing personal information "might include law enforcement agents, private

investigators, advertisers, or stalkers." Dorothy J. Glancy, Privacy and

Intelligent Transportation Technology, 11 Santa Clara Computer & High Tech. L.J.

151, 154 (1995).

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Both surveillance activity and the use of personal information present

opportunities to endanger the privacy of an individual. Because both categories

invoke privacy concerns when considered separately, it is easy to view them as

two distinct issues, each touching upon a different aspect of privacy. New

technology and new uses of current technology, however, blur the distinction

between surveillance activity and the use of personal information. New

surveillance technology can obtain and store personal information about an

individual, while personal information can be used in new ways akin to

surveillance. This merging of two categories of technology presents new

challenges for the right to privacy and amplifies existing challenges.

This Note examines the merging of surveillance and information privacy concerns

and the resulting potential to diminish individuals' privacy. Comprehension of

the right to privacy is necessary to understand how new technology can endanger

this right. Accordingly, Part I of this Note discusses the development of the

privacy right and its application to surveillance measures and personal

information. Part II discusses privacy concerns with regard to new [*978]

technology, examining surveillance and personal information issues separately.

Part III describes the merging of these two aspects of privacy as a result of

technological developments. Lastly, Part IV examines existing protections for

privacy and considers why they are insufficient. This final Part also proposes

measures to prevent the erosion of individual privacy in the face of

technological developments.

I. The Right to Privacy

A. Interests in Privacy

Privacy is an essential element of a free society. Many commentators agree that

without privacy, freedom is not possible. n10 Without the ability to interact

with one another in private, individuals cannot exchange ideas freely. This

"marketplace of ideas" is essential for a democracy to function properly and

give rise to a free society. n11 Although no "universally accepted definition of

the right to privacy" n12 exists, court opinions that address privacy issues

often encompass three areas of privacy interests: autonomy, intrusion, and

information privacy. n13

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n10 Justice Douglas posed the question: "If a man's privacy can be invaded at

will, who can say he is free?" Osborn v. United States, 385 U.S. 323, 354 (1966)

(Douglas, J., dissenting). Justice Brandeis described the right to be left alone

as "the most comprehensive of rights and the right most valued by civilized

men." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J.,

dissenting). See also Frank Askin, Surveillance: The Social Science Perspective,

4 Colum. Hum. Rts. L. Rev. 59, 62-88 (1972) (presenting an appendix from

Plaintiff's Brief, Tatum v. Laird, 444 F.2d 947 (D.C. Cir. 1971), rev'd, Laird

v. Tatum, 408 U.S. 1 (1972), and giving a scientific definition of "chill" and

describing the psychological and sociological evidence indicating that a U.S.

Army surveillance program chilled the exercise of First Amendment rights). A

distinction must be made between privacy as a universal concept (an interest in

privacy) and privacy as a legal right. Although everyone has their own

individual concept of privacy, the fundamental idea of privacy has existed for

centuries. The legal right to privacy, however, is a relatively new concept that

the courts still are developing. See, e.g., Griswold v. Connecticut, 381 U.S.

479, 483 (1965) (holding that the right to privacy exists in the penumbras

formed by the Bill of Rights); see also infra notes 37-41 and accompanying text

(discussing the constitutional right to privacy as established by the Court in

Griswold). Interests in privacy and the right to privacy do not necessarily

coincide.

n11 See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,

dissenting) (disagreeing with the majority's intent test and applying the "clear

and present danger" standard to defendant's speech).

n12 Alpert, supra note 6, at 102.

n13 See id. at 104 (citing George B. Trubow, Privacy Law and Practice (1991)).

As Sheri Alpert points out, these three interests in privacy are "by no means

mutually exclusive." Id. at 107. The merging of surveillance and personal

information technologies tends to intertwine these interests even further. For

the benefit of discussion of the right to privacy, however, it is helpful to

separate them into distinct categories.

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[*979]

Autonomy generally is the ability of an individual to engage in private

activities free from intervention or regulation. n14 Put succinctly, autonomy

allows people to make decisions freely and act as individuals. n15

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n14 See id. at 104.

n15 Although an autonomy interest is important to the concept of privacy,

neither surveillance technology nor personal information problems disturb the

autonomy aspect of privacy. This Note, therefore, is concerned primarily with

the other two major privacy interests. It is worth noting, however, that

technological advances that endanger the autonomy element of privacy do exist.

See, e.g., id. at 104-05, 108-10 (discussing Intelligent Vehicle Highway System

("IVHS") user services that implicate the autonomy element of privacy); Valerie

Reitman, Look Who's Getting a License to Drive: Automated Cars Operate Without

Human Drivers, Wall St. J., July 25, 1997, at A7 (describing auto industry

efforts to develop automated cars that can drive on the highway with minimal

human intervention).

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Privacy also includes an interest against intrusion. This interest "means being

free from surveillance in situations in which an individual has a reasonable

expectation of privacy." n16 The interest against intrusion is tied to the

anonymity of individuals. n17 Anonymity in this context does not signify a

complete lack of ability to identify someone; instead, it refers to an

individual's ability to go about his daily life without having his every move

observed. Surveillance technology is designed to intrude upon this anonymity

and, in certain situations, society accepts this intrusion. It can be unclear,

however, what types of intrusion are acceptable, and to what extent, when new

advances in surveillance are involved.

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n16 Alpert, supra note 6, at 105.

n17 See id.

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The third major aspect of privacy is that of information privacy. Information

privacy also is tied to the concept of anonymity but, instead of addressing an

individual's actions and movements, it is concerned with his personal

information. Individual bits of personal information can identify a person and

his activities. When various items of personal information are pieced together,

an even more telling picture can develop. n18 The argument for information

privacy stems from the concern that individuals have a right to some control

over who has access to their personal information, and for what purpose. n19

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n18 See infra notes 85-87 and accompanying text (discussing the "Mosaic Theory,"

which describes this effect).

n19 This concern arises out of anonymity concerns in the same way as the

interest against intrusion does. Information privacy concerns differ from

intrusion concerns, however, in that they address an individual's personal

information, rather than the individual himself.

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[*980]

New technology can encroach upon all three of these privacy interests. Intrusion

and information privacy interests, however, especially are relevant to the

technologies discussed here and to the merger of these technologies. n20

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n20 This is not to say that the technologies discussed here do not have the

potential to affect an individual's interest in autonomy. See, e.g., Alpert,

supra note 6, at 108-09 (discussing IVHS user services with the potential to

affect the autonomy interest-particularly Advanced Vehicle Control Systems);

Glancy, supra note 9, at 155-56 (discussing Intelligent Transportation System

("ITS") automated applications with the potential to compromise individual

autonomy).

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B. Surveillance Intrusion

Surveillance activity directly relates to an individual's interest against

intrusion because it is an intentional attempt to observe that which the

individual believes to be private. It is impossible to consider the relationship

of surveillance activity to privacy concerns without discussing searches and the

Fourth Amendment of the United States Constitution. n21 An unreasonable search

is an intrusion on an individual's right to privacy. n22 New developments in

surveillance technology, however, can make unclear what constitutes such a

search. n23

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n21 U.S. Const. amend. IV. It is the search aspect of the Fourth Amendment to

which surveillance activity relates. The Amendment provides: The right of the

people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to

be seized. Id.

n22 See, e.g., Katz v. United States, 389 U.S. 347, 350 (1967) (holding that the

Fourth Amendment "protects individual privacy against certain kinds of

governmental intrusion").

n23 For example, one commentator on back-scattered x- ray imaging devices

likened their use to "a high-tech strip search without a warrant." Elizabeth

Fernandez, State Prisons Scanning Visitors with X-Rays, S.F. Examiner, Nov. 3,

1997, at A1.

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In earlier Fourth Amendment jurisprudence, the Supreme Court used the trespass

doctrine when considering searches. n24 This "area-based" n25 approach narrowly

construed the Fourth Amendment, holding that a search did not occur unless

physical [*981] intrusion into one of the subject's "constitutionally

protected area[s]" occurred. n26 Surveillance such as wiretapping, that did not

require physical intrusion, did not constitute a search, and, thus, did not

require a warrant. n27

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n24 The Court established the trespass doctrine in Olmstead v. United States,

277 U.S. 438 (1928). In Olmstead, the Court held that a wiretap did not

constitute an illegal search because no physical intrusion of the defendant's

"houses, persons, papers, and effects" occurred. Id. at 465.

n25 Sergent, supra note 9, at 1187.

n26 Silverman v. United States, 365 U.S. 505, 510 (1967) (holding that

eavesdropping surveillance constituted an illegal search because the microphone

physically intruded into the premises).

n27 See Olmstead, 277 U.S. at 466. Interestingly, prior to the Olmstead

decision, the Court at times construed the Fourth Amendment less narrowly,

finding the occurrence of a search without physical trespass. See, e.g., Boyd v.

United States, 116 U.S. 616, 622 (1886) (holding that a law compelling the

defendant to produce books and papers constituted an illegal search, even

without physical entry onto defendant's premises).

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In 1967, the Supreme Court replaced the trespass doctrine with what has come to

be known as the Katz doctrine. In Katz v. United States, n28 the Court found

that a telephone wiretap did in fact constitute a search. n29 This decision,

which extended the protection that the Fourth Amendment gives to individuals,

was based in the concept that "the Fourth Amendment protects people, not

places." n30 The Court in Katz responded to the fact that surveillance

technology enables the violation of an individual's interest against intrusion

without any physical trespass. n31

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n28 389 U.S. 347 (1967).

n29 See id. at 354.

n30 Id. at 351.

n31 See id. at 362 (Harlan, J., concurring) (holding that Fourth Amendment

protections extend beyond physical invasion, because "in the present day . . .

reasonable expectations of privacy may be defeated by electronic as well as

physical invasion").

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The Katz doctrine has been used since to determine whether a search has

occurred. The test developed in Katz, which appears in Justice Harlan's

concurring opinion, n32 is a two-pronged test that measures both subjective and

objective factors. n33 In the first prong of the test, the subject must "have

exhibited an actual (subjective) expectation of privacy." n34 The second prong

then assesses whether that "expectation [is] one that society is prepared to

recognize as 'reasonable.'" n35 For activity, including surveillance activity,

to constitute a search under the Katz test, both prongs of the test must be met.

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n32 See id. at 360-62 (Harlan, J., concurring).

n33 For a critical argument that the "objective" prong of the Katz test is not

objective at all, see Sergent, supra note 9, at 1193-94.

n34 Katz, 389 U.S. at 361 (Harlan, J., concurring).

n35 Id.

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The Katz doctrine was a significant step in expanding the protection of

individuals' privacy against technological advances. The Court recognized that

physical trespass is not required for invasion of one's privacy, and determined

that [*982] such nonphysical intrusion by the government could constitute a

search. n36 The Katz test as currently applied by many courts, however, does not

provide sufficient protection against numerous emerging technologies.

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n36 The holding in Katz does not prevent the use of surveillance equipment by

police and government entities altogether. However, the holding in Katz helped

safeguard privacy interests by establishing that the use of such equipment can

constitute a search, thereby requiring a warrant.

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C. Information Privacy

Although the Fourth Amendment addresses the tension between the interest against

intrusion and surveillance technology, as it relates to searches, no specific

constitutional clause addresses the right to privacy generally. Because the

right to privacy is not enumerated in the Constitution, there is disagreement

over what that right entails.

The right to privacy first was stated explicitly by the Supreme Court in

Griswold v. Connecticut. n37 Although the Court previously had quashed laws that

limited the autonomy of individuals, n38 it had done so on the grounds that

these laws infringed upon the liberty guaranteed by the Due Process Clause of

the Constitution. n39 In Griswold, the Court drew upon these prior cases in

demonstrating that a right to privacy is implicit in the Constitution and that

several "specific guarantees in the Bill of Rights have penumbras, formed by

emanations from those guarantees that help give them life and substance." n40

For the rights protected by the Bill of Rights to have [*983] any substance,

the Court reasoned, the rights must "create [related] zones of privacy." n41

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n37 381 U.S. 479 (1965). Although the Court mentioned the "freedom to associate

and privacy in one's associations" in NAACP v. Alabama, 357 U.S. 449, 462 (1958)

(holding that compelled disclosure of membership in a political organization

violated an individual's freedom of association), it did not specify, in that

case, that a right to privacy exists. Rather, the Court recognized privacy as

necessary to the "peripheral First Amendment right" of freedom of association.

See Griswold, 381 U.S. at 483 (citing NAACP, 357 U.S. at 462).

n38 See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925) (holding that

an Oregon law requiring children to attend public schools violated due process);

Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (holding that a Nebraska law

prohibiting the teaching of grade school classes in any language other than

English deprived parents and teachers of liberty without due process).

n39 The Fourteenth Amendment states, in pertinent part, that "[n]o State shall

make or enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any person of life,

liberty, or property, without due process of law . . . ." U.S. Const. amend XIV.

n40 Griswold, 381 U.S. at 484. It is interesting to note that Justice Harlan,

who established the Katz test providing for greater protection from surveillance

intrusion, did not see a need to recognize a separate right to privacy. Instead,

he believed that the "Due Process Clause of the Fourteenth Amendment stands . .

. on its own bottom." Id. at 500 (Harlan, J., concurring).

n41 Id. at 484.

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Because the right to privacy exists only in these zones of privacy as they

relate to enumerated Constitutional rights, privacy is not a clearly defined

right. n42 How far this right extends to information privacy is the subject of

significant uncertainty.

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n42 Until the Supreme Court specifically recognizes the right to privacy in a

certain area, privacy in that area is speculative. Even after the Court

recognizes privacy in an area, the degree to which the right extends often is

uncertain. For example, following the Griswold decision, no one knew whether the

protection of sexual privacy extended only to married couples, or whether

unmarried heterosexuals and homosexuals also were entitled to this privacy. The

Eisenstadt v. Bard decision, 405 U.S. 438, 443 (1972), later demonstrated that

this right protects unmarried heterosexuals; conversely, the Bowers v. Hardwick

decision, 478 U.S. 186, 191 (1986), showed that homosexuals do not necessarily

enjoy the protection of this right.

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Information privacy is based on an autonomist view of individuals in which

personal data are included as part of the "self." n43 In this view, the right to

privacy protects the information that comprises a person's "data image" n44 the

same way it protects a person's physical being. n45 As society becomes ever more

information-based, the need for individuals to distribute their personal

information increases. n46 An unwillingness to give personal information to

others effectively would prevent an individual from functioning in society. n47

As personal information becomes more [*984] important and is accessible to a

greater number of people and institutions, the need to protect such private

information intensifies.

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n43 See Steven A. Bercu, Toward Universal Surveillance in an Information Age

Economy: Can We Handle Treasury's New Police Technology?, 34 Jurimetrics J. 383,

401 (1994). See also Ellen Alderman & Caroline Kennedy, The Right to Privacy 326

(1995) ("A portrait of you . . . will exist in cyberspace. The profile could be

so complete that it will be like having another self living in a parallel

dimension; it is a self you cannot see, but one that affects your life just the

same.").

n44 Bercu, supra note 43, at 401.

n45 See id. at 400 (citing Joel Feinberg, Autonomy, Sovereignty, and Privacy:

Moral Ideals in the Constitution?, 58 Notre Dame L. Rev. 445-47, 453 (1983)).

n46 See Fred W. Weingarten, Communications Technology: New Challenges to

Privacy, 21 J. Marshall L. Rev. 735, 741-42 (1988); infra notes 88-92 and

accompanying text.

n47 See Office of Technology Assessment, Computer-Based National Information

Systems: Technology and Public Policy Issues 77, 108 (1981), quoted in Bercu,

supra note 43, at 408 n.129 ("[I]t is questionable whether future participation

in a computerized society can be construed to be voluntary if the alternative is

to forgo all services necessary to live comfortably as a member of that

society."). For an example of such compelled participation, or at least the

perception thereof, see Carol Power, Little White Box Cuts Toll Bridge Queues,

Irish Times, Nov. 7, 1997, at 59, available in 1997 WL 12033993 (discussing

automatic toll collection technology used in New York); Wire Services, N.J.

Prepares for High-Tech Road Toll System; Pa.-to-Mass. Effort Expected to Cut

Smog, Congestion and Stress, Baltimore Sun, Apr. 20, 1997, at 15B (discussing a

multistate network that would use automatic toll collection technology).

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The Supreme Court has examined the issue of information privacy only once. In

Whalen v. Roe, n48 the Court held that the State of New York could maintain a

database on individuals who legally obtained narcotics by prescription. n49 The

Court found that the legitimate state interest of regulating drugs that could be

sold illegally outweighed the information privacy rights of the individuals

whose personal information appeared in the database. n50 In performing this

balancing test, however, the Court explicitly recognized that an information

privacy interest exists. n51

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n48 429 U.S. 589 (1977).

n49 See id. at 591.

n50 See id. at 598-602.

n51 See id. at 605 ("The right to collect and use such data for public purposes

is typically accompanied by a concominant duty to avoid unwarranted disclosures.

. . . [I]n some circumstances that duty arguably has its roots in the

Constitution . . . .").

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In the same way that the right to reproductive privacy established in Griswold

remained uncertain until subsequent decisions by the Court, the scope of the

right to information privacy similarly is unclear. Scholars generally agree

that, at present, the right to privacy in personal information is weak. n52 As

personal information plays a greater role in the daily lives of individuals, and

the interest in personal information privacy increases, the need to develop this

right will increase as well.

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n52 See Alderman & Kennedy, supra note 43, at 141-42; Bercu, supra note 43, at

422 n.193 (citing Privacy Protection Study Commission, Personal Privacy in an

Information Society 381- 82, 384-85 (1977); Priscilla M. Regan, Privacy,

Government Information, and Technology, 44 Pub. Admin. Rev. 629, 629 (1986); C.

Dennis Southard, Individual Privacy and Governmental Efficiency: Technology's

Effect on the Government's Ability to Gather, Store, and Distribute Information,

9 Computer L.J. 359, 370 (1989)). For an argument that no right to information

privacy currently exists, see Petersen, supra note 6, at 170-71.

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[*985]

II. Technology and Privacy Concerns

A. Surveillance Technology

Katz v. United States n53 replaced the trespass doctrine with the "reasonable

expectation of privacy" standard for determining whether certain activity

constitutes a search under the Fourth Amendment. This new standard no longer

requires physical intrusion for a warrantless search to violate an individual's

right to privacy. While the Katz doctrine was a response to the Court's

recognition that technology could make an invasion of privacy possible without

physical intrusion, recent technological advances in surveillance equipment make

the effectiveness of the Katz test questionable. n54

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n53 389 U.S. 347 (1967).

n54 One commentator asserts that "[n]ever before has there been the unusual

combination of hi-tech citizen searches and a bald lack of individualized

suspicion." Jennifer Mulhern Granholm, Video Surveillance on Public Streets: The

Constitutionality of Invisible Citizen Searches, 64 U. Det. L. Rev. 687, 711

(1987). For examples of different technological developments making such

"citizen searches" possible, see infra notes 60-62, 76-80 and accompanying text.

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While Katz established that the Fourth Amendment requires both a subjective and

objective expectation of privacy, n55 advances in surveillance technology bring

both of these expectations into question. The subjective prong of the Katz test

assesses whether an individual under surveillance had an actual expectation of

privacy. The test measures this expectation by the individual's conduct and the

steps the individual took to ensure privacy. n56 Steps that prevent visual

observation, such as fences n57 or coverings, n58 establish a subjective

expectation of privacy in some circumstances. Under current law, however, as

technological advances make new methods of observation possible, individuals

will be required to guard against more and more methods of surveillance to

demonstrate their subjective expectation of privacy. n59

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n55 See Katz, 389 U.S. at 361 (Harlan, J., concurring).

n56 See United States v. Broadhurst, 805 F.2d 849, 854 (9th Cir. 1986) (holding

that the "use of metal roofing" demonstrated that defendants had a subjective

expectation of privacyin their greenhouse by attempting to hide its interior).

n57 See California v. Ciraolo, 476 U.S. 207, 210 (1986).

n58 See Dow Chemical Co. v. United States, 476 U.S. 227, 236 (1986).

n59 The danger to an individual's interest in privacy is "particularly ominous

when the new technology is designed for surveillance purposes . . . . Control

over the technology of surveillance conveys effective control over our privacy,

our freedom and our dignity-in short, control over the most meaningful aspects

of our lives as free human beings." Surveillance Technology: Joint Hearings

Before the Subcomm. on Constitutional Rights of the Senate Comm. on the

Judiciary and the Special Subcomm. on Science, Technology and Commerce of the

Senate Comm. on Commerce, 94th Cong. 1 (1975) (opening statement of Sen. John V.

Tunney), quoted in Robert W. Kastenmeier et al., Communications Privacy: A

Legislative Perspective, 1989 Wis. L. Rev. 715, 720 n.32.

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[*986]

One technology that already has eroded the significance of the subjective

expectation of privacy is thermal imaging scanning. n60 Thermal imaging scanning

can be used to detect excessive "heat waste" n61 that could signify illegal

activity such as indoor marijuana cultivation. n62 In United States v. Myers,

n63 the Court of Appeals for the Seventh Circuit determined that the defendant

did not display a subjective expectation of privacy while using indoor growing

techniques because he made no effort to "conceal or contain the heat emissions

from his home." n64 Although Myers had taken other steps that might have created

a subjective expectation of privacy, the court held that he had no such

subjective expectation because he failed to conceal these heat emissions. n65

Under the Myers holding, an individual must protect against the discovery of

activity through thermal imaging technology, even in his own home, to establish

the subjective expectation of privacy required by the Katz test. n66

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n60 Thermal imaging scanning, also referred to as thermal imaging, uses infrared

technology to detect the escape of heat from the object being scanned by a

thermal imaging device. The surveillant then is able to view an image of this

escaped heat on a monitor. See United States v. Myers, 46 F.3d 668, 669 (7th

Cir.), cert. denied, 516 U.S. 879 (1995).

n61 Id. at 670.

n62 See id. Indoor marijuana cultivation requires heat lamps, which produce

significant amounts of heat that thermal imaging can detect. See id. at 669.

n63 46 F.3d 668 (7th Cir.), cert. denied, 516 U.S. 879 (1995).

n64 Id. at 669.

n65 See id. For example, Myers did not leave any trash at the curbside of his

home, presumably because he was disposing of marijuana clippings. See id. at

668-70. Such clippings left in the trash outside the home would not be protected

by any claim of privacy. See id. (noting that waste products "'intentionally or

inevitably exposed to the public'" are not protected by privacy interests

(quoting United States v. Ford, 34 F.3d 992, 997 (11th Cir. 1994)) (citing

California v. Greenwood, 486 U.S. 35, 37 (1988))).

n66 One could argue that an effort to conceal heat emissions to protect against

thermal imaging scanning would be a reasonable requirement in establishing a

subjective expectation of privacy only when an individual is engaged in an

activity which produces an unusually large amount of heat waste. Conversely,

because the human body itself produces heat emissions, one could argue that

protection against thermal imaging scanning is always required to create such an

expectation.

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If a subject establishes a subjective expectation of privacy, the second,

objective prong of the Katz test assesses whether that "expectation is one that

society is [*987] prepared to recognize as 'reasonable.'" n67 In the Myers

case, the Seventh Circuit found that, even had Myers established a subjective

expectation of privacy against thermal imaging scanning, this expectation would

not have been reasonable under the objective prong of the Katz test. n68 The

court likened the heat emissions from the subject's home to curbside trash,

which is not protected by privacy interests. n69 The court also stated that

thermal imaging scanning "does not intrude in any way into the privacy and

sanctity of a home," n70 in part because thermal imaging "does not penetrate the

viewed object, nor does it emit rays or beams of any type." n71 Because the

court in Myers found no objective expectation of privacy, the use of thermal

imaging scanning, regardless of what measures the defendant had taken to protect

against such surveillance, did not constitute a search within the meaning of the

Fourth Amendment. n72

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n67 Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

n68 See Myers, 46 F.3d at 670.

n69 See id. (citing Greenwood, 486 U.S. at 37).

n70 Id. at 670.

n71 Id. at 669. It is interesting to note that, under this reasoning, whether a

surveillance method will qualify objectively as an intrusion into privacy is, at

least in part, dependent on whether any physical intrusion has occurred. It is

exactly this trespass doctrine approach that the Katz test was designed to

replace. See Katz, 389 U.S. at 353.

n72 See Myers, 46 F.3d at 670. The court recognized the possibility that other

technologies may develop that would be so intrusive that their use without a

warrant would be unacceptable to society and, thus, an objective expectation of

privacy would exist. See id. at 670 n.1. The court, however, did not provide any

guidelines to indicate at what point surveillance technology would become

"unacceptably intrusive." Id.

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Although thermal imaging scanning may be used without a warrant because it is

not considered a search under the Fourth Amendment, n73 thermal imaging can

[*988] infringe upon an individual's interest in, if not right to, privacy.

Contrary to the government's position in cases challenging the use of thermal

imaging devices, one can make a strong argument that thermal imaging scanning

enables the user to observe characteristics and activities inside the home. n74

As United States Magistrate Judge Crocker inquired, if "thermal imagers do not

reveal activities that occur inside the home . . . then why does the government

use thermal imagers to try to detect indoor [illegal activities]?" n75

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n73 This is true in at least the Fifth, Seventh, Eighth, and Eleventh Circuits.

See United States v. Ishmael, 48 F.3d 850 (5th Cir.), cert. denied, 516 U.S. 818

(1995); United States v. Robinson, 62 F.3d 1325 (11th Cir. 1995); Myers, 46

F.3d. at 668; United States v. Robertson, 39 F.3d 891 (8th Cir. 1994), cert.

denied, 514 U.S. 1090 (1995); United States v. Ford, 34 F.3d 992 (11th Cir.

1994). No circuit court has ruled that thermal imaging scanning constitutes a

search, although other circuits have not considered the issue, or have

sidestepped it by deciding a case on other grounds. See, e.g., United States v.

Cusumano, 83 F.3d 1247 (10th Cir. 1996) (holding that a warrant to search

defendant's residence was supported by probable cause); United States v. Feeney,

984 F.2d 1053 (9th Cir. 1993) (holding that the police demonstrated probable

cause for the warrant under which they conducted their search). But see, e.g.,

United States v. Field, 855 F. Supp. 1518 (W.D. Wis. 1994) (holding that the use

of thermal imaging can constitute a search because the imager "intrudes" into

the home by detecting heat sources from within the home); State v. Young, 867

P.2d 593 (Wash. 1994) (holding that warrantless infrared surveillance violated

the Fourth Amendment and the state constitution's protection against warrantless

invasion of the home).

n74 Thermal imaging sometimes can be used to determine the location of walls,

dividers, and even people within a structure. See United States v. Olson, 21

F.3d 847, 848 n.5 (8th Cir. 1994) (discussing the visibility of rafters and

divider walls in a mobile home with the use of a thermal imaging scanner);

Young, 867 P.2d at 595 (discussing the visibility of a person through a curtain

or a thin plywood door with the use of a thermal imaging scanner).

n75 Field, 855 F. Supp. at 1531.

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Thermal imaging scanning is just one example of surveillance technology that can

erode the right to privacy. Other technologies that allow the user to observe

even more details are being developed, including magnetic gradient measuring,

n76 passive millimeter wave imaging, n77 back-scattered x-ray imaging, n78

radar-skin scanning, n79 and [*989] satellite imaging. n80 While these

technologies all operate differently and may reveal different information, the

result is the same in that each enables the user to observe that which

previously was private.

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n76 Magnetic gradient measuring detects, in the magnetic field surrounding an

individual, fluctuations caused by metal materials and compares these

fluctuations to those caused by other items, such as weapons. See Mark Hansen,

No Place to Hide: If Crime is Everywhere, So, Too, May Be Police Surveillance

Cameras and Contraband Detection Devices to Combat It. But Who's Looking out for

Privacy Rights?, 83 A.B.A. J. 44, 47 (Aug. 1997); Highly Sensitive Gun Detectors

May Soon Be in Hands of Police, Minneapolis-St. Paul Star Trib., Apr. 13, 1997,

at 21A.

n77 Passive millimeter wave imaging detects variations in electromagnetic rays

emitted by objects. These waves can produce an image of the objects on a

person's body by contrasting the objects' variations with the variations

produced by the body itself. The variations can be measured regardless of the

objects' composition. See Hansen, supra note 76, at 46, 48; Fox Butterfield,

Arms Detector Technology Aims High, Commercial Appeal (Memphis, TN), Apr. 7,

1997, at A8; Stephen Grey & Steven Haynes, Police See Knife Carriers at 60ft

with X-Ray Spy Cameras, Sunday Times (London), May 11, 1997, at NEWS7; Bruce D.

Nordwall, Hybrid Camera to Seek Runway Through Fog, Aviation Week & Space Tech.,

July 7, 1997, at 66.

n78 Back-scattered x-ray imaging bounces a low dosage of x-ray radiation off of

the subject's skin, rather than penetrating the body like traditional x-rays.

The reflected x- rays then can be used to produce a computer-enhanced outline of

the subject's body and everything he is carrying. See Highly Sensitive Gun

Detectors May Soon Be in Hands of Police, supra note 76; Estes Thompson,

Security Detector Sees All: San Diego Firm's System Helps Pierce Cloak of

Secrecy, San Diego Union- Trib., Apr. 10, 1997, at C1; War on Drugs is Boon to

X-Ray Manufacturer, Orlando Sentinel, Nov. 5, 1997, at B4. One commentator has

said that back-scattered x-ray machines "produce a crude image of bodies without

clothing." Elizabeth Fernandez, State Prisons Scanning Visitors with X-Rays, S.

F. Examiner, Nov. 3, 1997, at A1.

n79 Radar-skin scanning can produce a very precise image of the subject's body,

including intimate anatomical details, thereby revealing objects on the body.

See Mark Fischetti, Defusing Airline Terrorism, Tech. Rev., Apr. 1997, at 38,

44; Hansen, supra note 76, at 46. The ability to create such images raises the

interesting question of whether the established right to privacy in one's naked

body, see, e.g., Bowling v. Enomoto, 514 F. Supp. 201, 203 (N.D. Cal. 1981)

(holding that prisoners in an all-male institution had a limited constitutional

right to privacy that included the right to be free from unrestricted

observation of their genitals and bodily functions by female prison officials)

(citing York v. Story, 324 F.2d 450 (9th Cir. 1963), cert. denied, 376 U.S. 939

(1964)), extends to such electronically produced images.

n80 Satellites can make use of photography, video, and infrared surveillance

techniques from orbit. Already, these methods are capable of detecting an image

as small as one meter in length on earth, and precision and resolution are

expected to improve further. See Krysten C. Kelly, Note, Warrantless Satellite

Surveillance: Will Our 4th Amendment Privacy Rights Be Lost in Space?, 13 J.

Marshall J. Computer & Info. L. 729, 761 (1995). Both commercial and military

satellites are in use by private parties and the government. See id. at 737

(citing Edmund L. Andrews, U.S. to Allow Sale of the Technology for Spy

Satellites, N.Y. Times, Mar. 11, 1994, at A1, D5). One can draw an analogy

between satellite imaging and aerial surveillance. Current standards regarding

aerial surveillance would make warrantless satellite imaging legal. See, e.g.,

California v. Ciraolo, 476 U.S. 207 (1986) (holding that, although defendants

demonstrated a subjective expectation of privacy, there exists no objective

expectation of privacy from aerial surveillance in one's back yard); Dow Chem.

Co. v. United States, 476 U.S. 227 (1986) (holding that taking aerial photos of

exposed areas of an industrial plant does not constitute a search); United

States v. Broadhurst, 805 F.2d 849 (9th Cir. 1986) (holding that taking aerial

photos of a greenhouse does not constitute a search). Additionally, it is

conceivable that satellites could make use of the new technologies listed above,

or perhaps others. Although the Court in Dow Chemical did warn that the use of

sophisticated equipment by the government may, at some point, require a warrant,

it did so in dicta and did not provide clear standards as to when this threshold

would be crossed. See Dow Chem., 476 U.S. at 238.

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If the Katz test, as currently applied by the majority of courts, is applicable

to these new surveillance technologies, then use of these technologies will not

constitute a search and the Fourth Amendment will not prevent their use without

a warrant. Even if courts were to find that an expectation of privacy against

such equipment was reasonable, thereby passing the objective prong of the Katz

test, the current standard [*990] still would require the subject to take

protective measures against the equipment's use to establish a subjective

expectation of privacy. n81 With technological advances occurring at an

increasingly rapid pace, it is unlikely that a person would be aware of what

surveillance technology observers are using and what steps he must take to

protect himself. n82 While such surveillance equipment reveals private

information, under the current standard it does so without infringing on any

legally defined right to privacy. n83

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n81 Interestingly, the court in United States v. Ishmael held the reverse to be

true: The defendants displayed a subjective expectation of privacy in their

"heat waste," but such an expectation was not objectively reasonable. See United

States v. Ishmael, 48 F.3d 850, 854-55 (5th Cir.), cert. denied, 516 U.S. 818

(1995).

n82 It is unclear whether an individual even can take any steps to effectively

prevent observation via the use of some of these new technologies. Additionally,

it is conceivable that observers could subject a person to observation by

numerous surveillance tools, thereby making protection against observation

prohibitively expensive, if possible at all. Judge McKay, in finding a

subjective expectation of privacy against use of a thermal imaging scanner,

stated that, without such an expectation, "the privacy of the home would be left

at the mercy of the government's ability to exploit technological advances."

United States v. Cusumano, 83 F.3d 1247, 1259 (1996) (McKay, J., concurring in

part and dissenting in part).

n83 Judge McKay, in arguing against the current standard, noted: "Technological

wizardry neither obviates nor supplants a warrant." Id. at 1261 (McKay, J.,

concurring in part and dissenting in part).

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B. Information Privacy

The interest in information privacy differs from the privacy interest against

surveillance in that, in the former, the use of private information does not

involve observation of the actual person. Instead, the subject's personal

information is scrutinized and used, usually without the subject's knowledge. In

some ways, this information can be even more telling than direct observation

through surveillance. As in the field of surveillance technology, new

developments in the use of personal information increase the potential for an

infringement of information privacy.

The threat to information privacy stems from the gathering and distribution of

personal information. Individuals generate personal information on a daily basis

through, for example, bank transactions, credit card purchases, and medical

records. Often, small pieces of personal information can be very informative,

with the potential to reveal further sensitive data about the subject. n84

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n84 Bank records can reveal a person's income, for example, through records of

direct deposit. Credit card records can display which clothing stores or

restaurants a person prefers. Perhaps even more sensitive information is

contained in medical records, which can reveal a serious or embarrassing medical

condition, or which prescription medications a person is taking.

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[*991]

Even more information may be gleaned when personal information from a variety of

sources is collected and placed in one comprehensive database. This result is

known as the "Mosaic Theory." n85 The mosaic theory is based on the principle

that "the sum of bits of data can be greater than the individual bits [and that]

putting pieces of information together can create new information." n86 As

society generates and stores more personal information than ever, and as

databases from various businesses and government agencies become more

interconnected, the compilation of a dossier on an individual from his personal

information becomes easier. n87

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n85 See Bercu, supra note 43, at 400 & n.89.

n86 Id. at 400. The Supreme Court seems to accept the mosaic theory. In United

States Department of Justice v. Reporters Committee for Freedom of the Press,

489 U.S. 749 (1989), the Court saw a distinction between "scattered disclosure

of the bits of information" in a Federal Bureau of Investigation rap sheet and

"revelation of the rap sheet as a whole." Id. at 764. The Court went on to say

that there is a "vast difference" between widely dispersed records and "a

computerized summary located in a single clearinghouse of information." Id.

Although the Court was examining the privacy interest under Exemption 7C of the

Freedom of Information Act and was careful to point out that it was not

examining a constitutional question, this "summary of information" argument

pertains to the nature of information rather than the standard of privacy. Such

an argument, therefore, would apply equally to a constitutional privacy right,

even under a different standard.

n87 "'Dossier Compilation' refers to a government agency's collection,

combination, organization, and analysis of data about an individual." Bercu,

supra note 43, at 399. Dossier compilation is not limited necessarily to

government agencies; corporations or even private individuals also may engage in

this activity. See Alderman & Kennedy, supra note 43, at 324-25; Glenn Rifkin,

Licensee Is Now Selling a Lotus Database, N.Y. Times, July 11, 1991, at D5.

Government and private firms alike can use a dossier to "profile" individuals

for a number of purposes, ranging from targeting criminal suspects to marketing

to potential customers. See Michael Higgins, Looking the Part, 83 A.B.A. J.

48-50 (Nov. 1997).

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Privacy concerns regarding personal information already exist as the amount of

daily activity that is recorded increases. n88 Consider the following

hypothetical average day: A man stops at an automated teller machine on his way

to work to withdraw cash from his checking account. Once at work, he swipes a

security badge to gain access to the building. n89 At lunch, the man goes to a

nearby restaurant and [*992] pays with his credit card. On the way home, he

takes the expressway, and pays his toll automatically as he drives through the

E-Z Pass toll booth lane. n90 Before going home, he stops at the supermarket to

buy dinner, which the cashier scans at the checkout counter. n91 Finally, once

home, he orders a pay-per-view movie on TV with his touch-tone phone. All of

these activities and transactions generate personal information about this man,

which potentially may be stored and analyzed for an unlimited time. n92

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n88 See Weingarten, supra note 46, at 741-42.

n89 Security access to a building, computer system, or other protected area with

an electronic identification card is known as "computer-assisted front end

verification." See Bercu, supra note 43, at 399. Other examples of

computer-assisted front end verification include passwords, personal

identification numbers ("PINs"), voiceprint registers, and retinal scanners. See

id. at 399 n.85.

n90 E-Z Pass lanes allow drivers to pay a toll without stopping at a toll booth.

"Instead, scanning devices mounted in traffic lanes designated for E-Z Pass

users read vehicle and account information transmitted by a tag mounted on the

inside of the vehicle's windshield, and the appropriate toll amount is

subtracted from a prepaid account." Richard Richtmyer, Automatic E-Z Pass

Continues to Make Inroads in Northeast Toll Collection Plazas, Bond Buyer, Aug.

6, 1997, at 30; see Sue Epstein, Whitman Clears Way for Electronic Tolls; E-Z

Pass Would Ease Congestion at Booths, Star-Ledger (Newark, N.J.), Apr. 3, 1997,

at O22; Power, supra note 47, at 59; Marilyn Wimp, Toll Collection Going

High-Tech, Phila. Bus. J., Nov. 21, 1997, at 9. Although automated toll

collection has been in use for several years in a number of states such as

California, Oklahoma, and Texas, the E-Z Pass system will create a network that

will allow drivers to use one pass in several states, including Delaware,

Maryland, New Jersey, New York, and Pennsylvania, regardless of where the pass

was purchased. See Epstein, supra at O22; Richtmeyer, supra at 30.

n91 With the use of a check-cashing card or other "value" cards, supermarkets

can (and do) keep track of their customers' purchases. Some supermarkets even

mail customers coupons that have been tailored to fit the customers' buying

habits. After purchasing a large bag of dog food for a friend, the author of

this Note (who does not have a dog) received numerous coupons for dog food and

dog products from a supermarket chain in Richmond, Virginia. Although most would

find this amusing or, at worst, slightly annoying, it does raise the issue of

the accuracy of personal information that is kept in various databases and the

problems that inaccurate information can cause. Although the accuracy issue is

outside the scope of this Note, discussions of this problem can be found in

Alderman & Kennedy, supra note 43, at 325-26; Nicholas de B. Katzenbach &

Richard W. Tomc, Crime Data Centers: The Use of Computers in Crime Detection and

Prevention, 4 Colum. Hum. Rts. L. Rev. 49, 52-54 (1972).

n92 Such personal data could be "collect[ed], aggregat[ed] and manipulat[ed] . .

. throughout the individual's lifetime." Glancy, supra note 9, at 152. A similar

problem exists with records collected by surveillance equipment, such as

videotapes from security cameras. See Granholm, supra note 54, at 706-07.

Another problem regarding electronic databases is that deleting data does not

always remove it from the system. Often, it is possible to retrieve "deleted"

data until the system writes over that memory location with new data. See

Sergent, supra note 9, at 1205-06.

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While each of these transactions can reveal a particular activity in this man's

day, generally the information is stored in separate databases and does not

reveal his overall daily activity. When put together, however, one can learn of

his activities for [*993] the entire day. Currently, people enjoy "anonymity

through obscurity," n93 meaning that, because these bits of information are

scattered throughout numerous databases, it is difficult to create a mosaic from

them.

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n93 Steven A. Bercu, Smart Card Technologies: Novel Privacy Concerns and the

Legal Response, 7 J. Propriety Rts. 2, 3 (No. 10, 1995).

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A technique called "computer matching" can diminish an individual's anonymity

through obscurity. n94 By combining information contained in various databases,

one can create a mosaic of a person's activity throughout any given day. n95

Furthermore, by combining the information stored in these databases which has

been acquired over an extended period of time, computer matching can reveal an

individual's regular behavioral pattern. n96

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n94 Computer matching is a "comparison of two or more data bases . . . to

develop more information about data in the first data base. For example, a

welfare agency could compare its list of benefits recipients with the records of

a registry of motor vehicles to identify welfare recipients who own expensive

cars." Bercu, supra note 43, at 399. As Robert Peck points out, "information

collected for one purpose may be shared with other agencies and used for

entirely different purposes . . . [and] assembled into a complete personality

profile at the touch of a computer button." Peck, supra note 1, at 28. Computer

matching can be used by government agencies and private actors alike.

n95 One commentator asserts that, even when an individual has no privacy

interest in individual bits of information, a privacy interest may exist in the

mosaic that results when these scattered pieces are combined. See Bercu, supra

note 43, at 410-11.

n96 For example, someone viewing a credit card record from one day could tell

where the cardholder ate lunch on that day (assuming the bill was paid with the

card). Viewing that record for a six-month period, however, could reveal how

often the cardholder goes out to lunch, which restaurants he frequents, and how

much he generally spends.

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One new technology with the potential to diminish individuals' anonymity greatly

is the smart card. Like "conventional consumer cards," smart cards both contain

personal information and cause it to be generated. n97 Instead of using a

magnetic strip to hold this information, however, smart cards contain a computer

chip. n98 This computer chip enables the smart card to hold significantly more

information than a conventional card, n99 and enables consumers to use the smart

card in a greater number of ways. n100

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n97 See Bercu, supra note 93, at 2. The term "conventional consumer card"

includes credit, debit, automated teller machine ("ATM"), and identification

cards. See id.

n98 "A smart card can be characterized as a small computer that, for sake of

convenience, borrows the form of a conventional consumer card." Id.

n99 At this time, smart card microchips can hold more than 20 times the amount

of information than a magnetic strip, and advances are expected to increase this

amount. See id.

n100 A smart card could be used as a credit card, debit card, telephone or

calling card, and medical record card. Smart cards also could hold electronic

cash, transforming a number of previously anonymous transactions into

transactions that generate personal data. See id. Several states have considered

implementing smart card technology into their drivers' licenses. See Tom Hester,

Smart License Plan Died Elsewhere, Star-Ledger (Newark, N.J.), Feb. 15, 1998, at

O25. It follows logically that, with the increased use of such cards for a

greater number of purposes, smart cards would generate even greater amounts of

personal information than conventional cards currently do.

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[*994]

The most significant difference between smart cards and conventional cards is

that smart card technology permits all of this information to be stored on one

card, which the consumer then uses to conduct a variety of different

transactions. Although this promises greater convenience, data generated by

smart cards potentially could be used to create an information mosaic on an

individual with great ease. n101 As Steven Bercu has pointed out, "such cards

would appear to facilitate the linkage of types of data that were until now

effectively quarantined from one another." n102 By placing onto one card

information that currently is dispersed widely among many databases, computer

matching could become unnecessary for piecing together personal information to

create a mosaic. n103 The informational pieces of the mosaic would be located

centrally already and, furthermore, it is likely that the increased utility of

the card would induce increased usage, thereby generating a greater number of

mosaic pieces. n104

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n101 "With smart cards, we run the risk that, for example, health, credit,

location, spending, and communications data about an individual will converge. .

. ." Bercu, supra note 93, at 3.

n102 Id.

n103 For several scenarios describing the capacity for such information linkage

to encroach upon privacy interests, see id. One executive in the smart card

industry predicts that "'[e]ventually, smart cards will replace every other card

in your wallet.'" Kelly Spang, Smart, Compact and in Demand, Computer Reseller

News, Feb. 24, 1997, at 151.

n104 Smart card technology is not a distant reality. The cards already are in

widespread use in several European countries, including Austria, France,

Germany, and Switzerland. See Cynthia Weaver, Smart Card: Skepticism Lingers

over the Business Case for Smart Cards Stateside, Am. Banker, Mar. 3, 1997, at

4A. In the United States, smart cards already are in use in limited settings

such as some universities and government agencies. See Jennifer Kingston Bloom,

GSA Leads Charge on Commercial Cards, Am. Banker, Dec. 3, 1998, available in

1998 WL 13326367; The Wired Campus: Technology is Radically Changing College

Life, PC Mag., Oct. 1, 1998, available in 1998 WL 18431386. Citibank is

experimenting with a handheld device called the "VeriFone Personal ATM," which

will allow customers to download electronic cash onto a smart card via phone

lines. See Citibank to Test Putting an ATM in Your Hand, Report on Smart Cards,

Apr. 28, 1997, available in 1997 WL 8987515. Additionally, Fischer International

Systems Corporation has developed the "Smarty," a device that allows a personal

computer's regular disk drive to read or write to a smart card. See Wendy S.

Mead, Device Lets Ordinary PC Disk Drives Read Smart Cards and Write to Them,

Am. Banker, Mar. 4, 1997, at 4A.

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[*995]

Developments in both surveillance and information technology increase, in

different ways, the potential for an erosion of privacy interests. The merging

of these two types of technology, however, creates even further concerns.

III. The Merging of Surveillance and Information Technologies

While surveillance and information technologies each create privacy concerns in

their own right, recent technological advances have blurred the distinction

between these two formerly separate categories. Surveillance technology now can

generate personal information, while personal information can be used for

surveillance-like purposes. n105 Merging these two fields of technology

heightens privacy concerns beyond the point that either category invokes

separately.

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n105 Further, surveillance activity potentially could generate personal

information that subsequently is used in a surveillance manner.

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Perhaps the most poignant example of surveillance technology's potential to

generate personal information is found in Intelligent Vehicle Highway Systems

("IVHS"). n106 IVHS technology is designed to make private transportation more

efficient and safer through a variety of services. n107 IVHS is an interactive

system in which travelers and their vehicles communicate with the roadway in an

effort to "reduce traffic congestion, improve highway safety, and reduce

environmental harm from vehicular traffic." n108 To achieve these goals, an IVHS

roadway must receive [*996] information from the vehicles on the roadway. n109

Surveillance equipment plays a role in acquiring the information needed to make

an IVHS system work. n110

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n106 IVHS technology, also known as Intelligent Transportation Systems ("ITS"),

encompasses more than just surveillance techniques. According to Sheri Alpert,

IVHS technologies can be placed into seven distinct categories: surveillance,

data/voice communications, traveler interface, traffic control strategies,

navigation/guidance, data processing, and in-vehicle sensors. See Alpert, supra

note 6, at 101. For a brief discussion of the political and economic forces

behind the development of IVHS, see Robert Hick & Shaden Tageldin, Putting

Technology in the Driver's Seat (Special Report: Transportation Trends:

Solutions to Traffic Woes), Nation's Cities Wkly., June 23, 1997, at 5; What Is

Intelligent Transportation?, Traffic World, Feb. 3, 1997, at 56.

n107 A major IVHS testing ground is the "smart road," a two-mile stretch of

intelligent highway running from Blacksburg, Virginia to Interstate 81. See Mark

Clothier, Here's What Readers Want to Know About 'Smart' Road, Roanoke Times &

World News (Roanoke, Va.), May 25, 1997, at 4; Mark Clothier, Most-Asked

Questions and the Answers, Roanoke Times & World News (Roanoke, Va.), May 25,

1997, at 1; Kathy Loan, Montgomery County Delays Action on Tech Land Offer Price

Mountain Site, Roanoke Times & World News (Roanoke, Va.), Mar. 26, 1997, at

NRV2.

n108 Alpert, supra note 6, at 97.

n109 Because IVHS encompasses many technologies, operators could implement it in

varying degrees on different roadways: The IVHS target concept is an interactive

link of a vehicle electronic system with roadside sensors, satellites, and a

centralized traffic management system to monitor constantly each vehicle's

location and the traffic conditions. With more advanced systems, drivers would

receive alternate route information in real time via two-way communications,

onboard video screens, and mapping systems. See id. at 99 (citing Andrew H.

Card, Jr., When 'Smart Cars' Meet 'Smart Highways', Wash. Post, Mar. 22, 1994,

at D8 (advertising supplement)).

n110 See id. at 101. Surveillance techniques that an IVHS system might use

include "vehicle probes, infrared sensors, microwave and radar sensors, aerial

surveillance, machine vision, Automated Vehicle Identification ("AVI"), closed

circuit television, automated vehicle classification, and automated vehicle

location." Id.

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The use of surveillance equipment to monitor the traffic on roadways raises the

privacy concerns that have been discussed previously. n111 Unlike typical

surveillance activity, however, IVHS surveillance equipment communicates with

computerized monitoring systems. Because IVHS systems involve databases that

process the information acquired through surveillance, IVHS also invokes

interests in information privacy. n112

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n111 See supra notes 21-36, 53-83 and accompanying text. One commentator has

asserted that "[IVHS] technologies provide an unprecedented mechanism for

pervasive real-time surveillance of each person's physical location and movement

from place to place." Glancy, supra note 9, at 152.

n112 For a "top ten" list of privacy concerns invoked by IVHS technology, see

Glancy, supra note 9, at 163-69.

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Operators could implement IVHS technology in such a way that each individual's

travel activity would be monitored. n113 The roadway could "watch" individuals

each time they travel on it, observing such factors as: when and how often a

traveler uses the roadway; how he drives, including travel habits such as

vehicle speed or lane changes; at what points he makes stops along the way; and

whether his vehicle is performing efficiently. n114 As the system acquires this

personal information [*997] through surveillance, it can store the information

in a database for future analysis. n115 In this way, IVHS roadways combine

surveillance and information technologies so that the system can be used for

real-time monitoring and for later use in compiling an information mosaic. In

doing so, IVHS invokes both intrusion and information privacy concerns.

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n113 Though IVHS technology could allow a driver to remain anonymous, some of

the proposed IVHS benefits are available only when the technology identifies

each driver.

n114 Commentators have argued that "such surveillance also trammels one's

constitutional right to travel, one's liberty of movement, and one's freedom to

associate." Granholm, supra note 54, at 695 n.40 (citing James J. Tomkovicz,

Beyond Secrecy's Sake: Toward an Expanded Vision of the Fourth Amendment Privacy

Province, 36 Hastings L.J. 645, 709-11 (1985)). Although Ms. Granholm was

discussing video surveillance specifically, other types of surveillance that

track an individual's movement may infringe on these rights in the same way.

n115 See Alpert, supra note 6, at 117. This stored data would have IVHS uses,

but potentially could be disseminated or sold for non-IVHS purposes, including

law enforcement. See id. For other examples of potential non-IVHS uses of IVHS

data, see id. at 112.

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While technological developments such as IVHS allow the use of surveillance to

yield personal information, advances in database linkage and communication

enable the use of personal information for surveillance purposes. The Financial

Crimes Enforcement Network ("FinCEN") provides an example of such a merger.

FinCEN has been described as "[a] hybrid between a data base and a focused

surveillance tool," n116 linking government and private databases to amass

personal information from many different sources.

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n116 Bercu, supra note 43, at 397.

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The U.S. Treasury Department initially developed FinCEN to detect and prevent

money laundering crimes. n117 The government recognized that this combination of

databases was a powerful resource and developed other uses for FinCEN. n118 Like

any database that retrieves and stores personal information, FinCEN invokes

information privacy concerns. n119 Additionally, FinCEN raises concerns

regarding the privacy interest against intrusion because of its surveillance

abilities. The system has the capability to conduct surveillance in two ways:

real-time tracking and data searches.

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n117 See id. at 390.

n118 See id. One such use is checking job applicants' criminal histories. Still

other new uses for FinCEN are being developed. See id. at 393-94.

n119 See supra notes 84-104 and accompanying text.

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With real-time tracking, FinCEN can locate an individual by his transactions as

they occur. n120 For example, by using FinCEN to observe activity on a credit

card, the surveillant can pinpoint the location of the subject each time he uses

the card. n121 Or, [*998] instead of tracking a particular person's activity,

a surveillant could use FinCEN to monitor activity at a specific location, such

as an automated teller machine, and to observe each transaction as it occurs to

gather information on all individuals who use that machine.

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n120 See Bercu, supra note 43, at 397 ("Like a hidden camera, wiretap, or

high-powered telescope or parabolic microphone, FinCEN can be used to observe

individuals without alerting them to the presence of surveillance.").

n121 This is, of course, assuming that the owner of the card is the person using

it. Similar credit card tracking systems exist in the private sector that can be

used to help detect credit card fraud and locate stolen cards as they are used.

For example, HCN Software, Inc., has developed a tracking program known as

"Falcon," which a number of credit card companies use to help prevent fraudulent

uses of their credit cards. See Oracle Corp., Alliance Online: Partner

Description: HCN Software, Inc. (visited Apr. 2, 1999)

<http://alliance.oracle.com/ cat- doc/html/p6107.htm>; HCN Software, Inc.,

Product/Service Description: Falcon Credit Card Fraud Detection System (visited

Apr. 2, 1999) <http://www.hcns.com/hncindex.html>. Other companies have

developed similar real-time tracking programs. See, e.g., Nestor, Inc., Nestor

Risk Management Systems Harbor You from Each New Wave of Fraud (visited Apr. 2,

1999) <http://www.nestorinteractive.com/Solution/Financl/Fin frm.html>

(describing PRISM fraud detection systems). These tracking programs enable fraud

analysts to observe purchases on a card as they occur and to investigate any

suspicious activity.

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In addition to real-time tracking, FinCEN is capable of surveillance through

sophisticated data searches. n122 These searches comb the data stored in

FinCEN's memory looking for flags that signal suspicious financial activity.

Such searches do not target a particular subject, but pour over "a sea of

innocuous activity" to identify questionable activity. n123 Therefore, probable

cause with regard to any of the individuals subjected to the search does not

exist. n124 If courts establish more clearly the interest in information

privacy, such inquiries could be subject to Fourth Amendment restrictions on

illegal searches. n125

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n122 See Bercu, supra note 43, at 397 ("[U]nlike previous law enforcement

technologies, FinCEN's system has a measure of intelligence. It is not simply a

data base of stored information awaiting retrieval.").

n123 Id. at 412.

n124 See id. at 411-12. Similar problems exist with the use of "conventional"

surveillance equipment on nonsuspect individuals, involving activity-based

surveillance as opposed to information-based surveillance. See United States v.

Cusumano, 83 F.3d 1247, 1254 (10th Cir. 1996) (McKay, J., concurring in part and

dissenting in part) (describing the use of thermal imaging scanners by police on

nonsuspects); supra notes 53-80 and accompanying text.

n125 Of course, if a private actor operated a FinCEN- like system, such Fourth

Amendment restrictions would not apply.

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In time, systems such as FinCEN could become more commonplace, with a multitude

of surveillance-capable databases observing each transaction. Such an

information system even could be incorporated into an IVHS system, furthering

the merger of surveillance and information technologies and the privacy concerns

that they invoke.

IVHS and FinCEN are just two examples of the merging of surveillance and

information technologies. As technological advances develop in both of these

fields, more technologies that fall into both categories are likely to emerge.

As this occurs, intrusion and personal information privacy interests will be in

further jeopardy of being diminished. Courts, therefore, must address privacy

concerns as they relate to [*999] these technologies before such technologies

are developed and introduced into society.

IV. Current and Proposed Privacy Protections

Current protections of individuals' right to privacy fall into three categories:

common law, legislative, and constitutional. n126 These protections do not

address adequately the ability of many emerging technologies to invade a

person's interest in privacy. In other words, new technologies can create a

disparity between one's right to privacy and one's interest in privacy. Advances

in both the surveillance and information technology fields, considered

separately, allow legal intrusions upon one's interest in privacy. When these

two types of technology converge, the problem is compounded further. n127

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n126 One commentator suggests that a fourth category of privacy protections

exists: contractual protections. See Petersen, supra note 6, at 179-80.

Contractual protections are relevant particularly to information privacy issues.

Although Ms. Petersen recognizes that current contractual protections of privacy

are not adequate, she states that "[t]he contractual solution to the problem of

information privacy could work in conjunction with federal legislation setting a

minimum standard of privacy for all individuals and all information." Id. at

180. Because this approach requires legislative protection before it is

effective, this Note treats contractual protection of privacy as a subset of

legislative protection.

n127 For an interesting discussion of arguments against the right to privacy,

see Glancy, supra note 9, at 169 ("Political viewpoints which place more

importance on the community or society than on its individual members generally

disapprove of privacy.").

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A. Common Law Protections of the Right to Privacy

Common law privacy protection takes the form of a tort action. Dean Prosser

categorized common law invasion of privacy as four distinct tort claims: false

publicity, intrusion, public disclosure of [*1000] private facts, and

appropriation of name or likeness. n128 The first of these torts, false

publicity, does not apply to information privacy because the information

involved generally is not false. n129 Similarly, the second tort of intrusion

does not apply to information privacy because this tort relates to physical

intrusions and trespass. n130 The third privacy tort, public disclosure of

private facts, requires that the information disclosed be offensive, and that it

be disseminated to the public at large. n131 Lastly, the tort of appropriation

of name or likeness applies only to public figures, and so is not useful for

most information privacy cases. n132

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n128 See William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 389 (1960). For an

example of state law adhering to Prosser's four traditional privacy torts, see

Summers v. Bailey, 55 F.3d 1564 (11th Cir. 1995).

n129 See Petersen, supra note 6, at 176 ("The information is generally true or

at least believed to be true.").

n130 See Prosser, supra note 128, at 392. Although courts could expand this tort

beyond physical intrusions in a way similar to the Supreme Court's expansion of

Fourth Amendment from the trespass doctrine to the Katz doctrine, Petersen

points out that "there has been virtually no change to the common-law privacy

torts," and that "the law has not kept pace with the changing technology and

values of modern times." Petersen, supra note 6, at 178.

n131 See Prosser, supra note 128, at 393-96. A reasonable person standard

determines whether the information in question is "offensive and objectionable."

Id. at 396. It seems unlikely that personal information, such as grocery

purchases or bank transactions, would be offensive. Even if the information- or,

perhaps more likely, its disclosure-met this standard, organizations generally

trade personal information among themselves rather than disclose it to the

general public as the tort requires.

n132 See id. at 398; Petersen, supra note 6, at 177. Ms. Petersen argues that,

of the common law protections, the tort of appropriation provides the best

solution to the problem of information privacy and, thus, courts could expand

appropriation claims to include persons who are not public figures. See id. at

177-78. The concept of name or likeness also would have to be expanded, however,

to include personal information. Given Petersen's observation that common law

privacy torts do not appear to be evolving, see supra note 130, it seems

unlikely that such a double expansion of this tort will occur.

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Many privacy issues that stem from new technologies do not fit neatly into these

traditional applications of common law tort claims of invasion of privacy. n133

Even if these torts expanded to include such issues, however, common law tort

protection is insufficient against rapidly developing technologies. A more

fundamental problem with the common law tort approach is that legislative action

or judicial decisions can preempt these torts. If the mood of the day favors

information dissemination over information privacy, common law legal protections

in privacy interests can be decimated with one new law or court decision. Later,

if public opinion again favors privacy, it may be difficult to recapture legal

protection for those interests. Indeed, it may be impossible, if the technology

which creates the invasion of privacy has become widespread and is obtained

easily. n134

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n133 See supra notes 53-104 and accompanying text.

n134 Even if lawmakers subsequently outlaw the technology at issue to address

the problem, significant damage already may have occurred if vast amounts of

personal information have been made available publicly.

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[*1001]

B. Legislative Protections of the Right to Privacy

Legislative protections of privacy appear in a variety of statutes aimed at both

government and private actors. The Fair Credit Reporting Act of 1970 n135 was

one of the first attempts to protect individuals' interest in information

privacy from private actors, while the Privacy Act of 1974 n136 was among the

earliest statutory protections against governmental misuse of personal

information. Congress has enacted a wide variety of other statutes in an effort

to protect information privacy, including the Bank Secrecy Act, n137 the Cable

Communications Policy Act, n138 the Computer Matching and Privacy Protection

Act, n139 the Driver's Privacy Protection Act, n140 the Electronic

Communications Privacy Act, n141 the Electronic Fund Transfer Act, n142 Title

III of the Omnibus Crime Control and Safe Streets Act (also known as the Wiretap

Act), n143 the Right to Financial Privacy Act, n144 and the Video Privacy

Protection Act. n145

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n135 15 U.S.C. 1681-1681s (1994).

n136 5 U.S.C. 552a (1994).

n137 Pub. L. No. 91-508, 84 Stat. 1114-24 (1970) (codified as amended in

scattered sections of 12 U.S.C.).

n138 47 U.S.C. 521-611 (1994).

n139 5 U.S.C. 552a(o) (1994).

n140 18 U.S.C. 2721-25 (1994).

n141 Pub. L. No. 99-508, 100 Stat. 1848 (1986) (codified as amended in scattered

sections of 18 U.S.C.).

n142 15 U.S.C. 1693-1693r (1994).

n143 18 U.S.C. 2510-21 (1994).

n144 12 U.S.C. 3401-22 (1994).

n145 18 U.S.C. 2710 (1994).

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The large number of acts protecting privacy and the diversity of their subject

matter suggest two important points. n146 First, privacy issues are surfacing in

more areas. As more transactions and activities lose their anonymous nature, due

either to surveillance or affiliation with an electronic database, those

transactions generate more personal information. Conversely, as more information

becomes available, more informational surveillance becomes possible. As privacy

becomes an issue in a previously anonymous area, Congress reactively enacts

legislation to combat the perceived invasion of privacy interests. n147

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n146 The examples listed above are all federal laws. The number and variety of

privacy-related laws that state legislatures have enacted is even greater. See

Glancy, supra note 9, at 177-80.

n147 The Video Privacy Protection Act, 18 U.S.C. 2710 (1994), also known as the

Bork Bill, provides an excellent example of the reactive nature of privacy

legislation. "The impetus for enacting the measure arose as a result of Judge

Robert Bork's 1987 Supreme Court nomination battle, during which a Washington,

D.C. newspaper obtained a list of 146 video tapes the Bork family had previously

rented from their neighborhood store." Dirkes v. Borough of Runnemede, 936 F.

Supp. 235, 238 (D.N.J. 1996) (citing S. Rep. No. 100-599, at 5 (1988)).

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[*1002]

Second, existing legislation aimed at protecting privacy generally is

ineffective when new technologies emerge. This ineffectiveness is why

legislatures must pass new legislation to target specific activities. n148 For

example, the Wiretap Act of 1968 did not protect communications transmitted over

cellular phones, pagers, or electronic mail. Congress subsequently passed the

Electronic Communications Privacy Act of 1986 to account for technologies that

had "outpaced . . . [the] statutory protections." n149 This patchwork approach

to privacy protection does not address a technology's privacy implications until

after they have become an issue. n150 Additionally, as information and

surveillance technologies continue to develop more rapidly and are used for a

greater variety of purposes, these technologies increasingly will outpace the

laws that legislatures have designed to regulate their use. n151

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n148 Acknowledging this flaw in statutory protection of information privacy,

Acting Presiding Justice Friedman noted that "[l]eaky statutes imperfectly guard

a small portion" of the "vast repositories of personal information" that are

stored in databases. White v. State, 95 Cal. App. 3d 621, 631 (3d Dist. 1971)

(Friedman, Acting P.J., concurring in part and dissenting in part).

n149 Michelle Skatoff-Gee, Comment, Changing Technologies and the Expectation of

Privacy: A Modern Dilemma, 28 Loy. U. Chi. L.J. 189, 201-04 (1996); see also

Michael Goldsmith, Eavesdropping Reform: The Legality of Roving Surveillance,

1987 U. Ill. L. Rev. 401, 401 n.2 (1987) ("These new modes of communication have

outstripped the legal protection provided under statutory definitions bound by

old technologies.").

n150 An in-depth examination of all of these laws and a discussion of why they

provide insufficient protection for privacy interests are beyond the scope of

this Note. For a discussion of legal privacy protections, see Kastenmeier et

al., supra note 59. See also Bercu, supra note 43, at 423-33 (discussing several

federal privacy statutes).

n151 One commentator has asserted that "the statutory approach . . . leaves

loopholes that rapidly changing technologies can enlarge." Peck, supra note 1,

at 29. For an example of such a loophole, see Askin v. McNulty, 47 F.3d 100 (4th

Cir.) (holding that a cordless phone that transmitted via radio waves was not

protected by the Electronic Communications Privacy Act of 1986 because such a

transmission did not fit the definition of wire, oral, or electronic

communication), cert. denied, Askin v. United States, 516 U.S. 944 (1995).

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Furthermore, legislative protections are subject to the same criticism of

instability as are common law privacy tort claims. Legislation can be amended or

repealed, and a reliance on measures that are changed easily to protect the

fundamental right of privacy is insufficient. If public sentiment swings against

privacy, even briefly, facets of that right could be lost forever. n152

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n152 Admittedly, this argument assumes that information privacy is a component

of the fundamental right to privacy. If information privacy is not part of the

fundamental right to privacy, and such privacy is lost through legislation, one

could argue that the privacy right has not been diminished. There clearly is an

interest, however, in privacy of personal information. See supra notes 37-52 and

accompanying text. Aligning such interests in privacy with the legal right to

privacy is the goal of legislative privacy protections.

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[*1003]

C. Constitutional Protection of the Right to Privacy

Because of the above concerns regarding common law and legislative privacy

protections, constitutional safeguards are a more effective means of ensuring

that new technology does not erode privacy. Constitutional protections are not

subject to whimsical change the way the common law or legislation can be. n153

Unlike the statutory attempts to prevent technology from encroaching on privacy,

constitutional protections address fundamental rights, not specific

technologies, and would not be outpaced readily by advances in technology.

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n153 This is not to say that the breadth of constitutional rights does not

change over time. Protections provided by the Constitution do, and should,

change as society evolves and needs develop. That a constitutional right to

privacy exists at all, even though not explicitly stated in the document, is a

testament to this fact. Such changes, however, occur more gradually and with

greater deliberation, rather than in heated response to a perceived crisis.

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Currently, however, the Constitution does not provide adequate protection for

privacy interests relating to new technologies. This is so for three reasons:

First, the Katz test is insufficient in the face of new technologies; second,

although the interest in personal information is strong, the legal right to

information privacy is weak; n154 and third, the Constitution ensures a right of

privacy against the government only, not against private actors. The document

itself need not undergo changes to address these insufficiencies. Instead, a

change in constitutional interpretation, as has occurred many times before,

would align privacy interests and privacy rights.

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n154 See Whalen v. Roe, 429 U.S. 589 (1977) (holding that a state interest in

controlling pharmaceuticals outweighs the individual's privacy right); supra

notes 48-51 and accompanying text.

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1. Improving the Katz Test to Account for New Technologies

The Katz doctrine is itself an example of how the Supreme Court has changed its

interpretation of a constitutionally guaranteed protection to keep pace with

developing technology. n155 The Court expanded individuals' Fourth Amendment

[*1004] rights in Katz by abandoning the trespass doctrine. n156 The expansion

of this constitutionally protected right stemmed from the realization that

surveillance technology allowed the government to infringe on an individual's

interest against intrusion without physical trespass. n157

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n155 See Katz v. United States, 389 U.S. 347 (1967) (holding that a telephone

wiretap constituted a search under the Fourth Amendment); supra notes 32-36 and

accompanying text (discussing the Katz test for determining whether a search has

occurred, and the ways the test expanded Fourth Amendment protections).

n156 See supra notes 28-31 and accompanying text.

n157 See Katz, 389 U.S. at 362 (Harlan, J., concurring) (stating that Fourth

Amendment protections extend beyond physical invasion, because "in the present

day . . . reasonable expectations of privacy may be defeated by electronic as

well as physical invasion").

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Today, the Katz test as applied is insufficient against emerging new

technologies. n158 The problem lies in courts' understanding of the subjective

expectation of privacy held by a surveillance subject. Even if the objective

prong of the Katz test is satisfied, n159 a subject still must take affirmative

protective steps to display a subjective expectation of privacy against

surveillance. n160 The development of new technologies, however, makes it

difficult or impossible to protect against surveillance intrusions. n161

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n158 The failure of the Katz test today is analogous to the failure of the

trespass doctrine against technological advancements earlier in the century.

n159 Because the objective prong of the Katz test uses a "reasonable person"

standard, as surveillance technology becomes more advanced-and thereby more

intrusive-it is likely that an expectation of privacy against such technology

will be "one that society is prepared to recognize as 'reasonable.'" Id. at 361

(Harlan, J., concurring). Although such a societal opinion will satisfy the

first prong of the Katz test, it will not address the second, subjective prong.

n160 See supra notes 55-59 and accompanying text.

n161 See supra notes 81-83 and accompanying text.

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To strengthen the Katz doctrine so that it provides a real right against

intrusion in the face of advances in surveillance equipment, courts must

interpret the subjective prong of the Katz test to protect against such

technology. Individuals who are the subject of high-tech searches n162 should be

deemed to hold a subjective expectation of privacy even without taking

affirmative steps to protect themselves. Furthermore, the absence of available

measures to protect oneself against an advanced method of surveillance should

constitute a subjective expectation that no one is conducting such surveillance.

n163

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n162 Such high-tech searches should include activity- based surveillance methods

and data surveillance alike. An increased right in information privacy is

needed, however, before data surveillance constitutes a search. See infra notes

168-72 and accompanying text.

n163 This interpretation of the subjective expectation of privacy provides a

defense against surveillance equipment that subjects are aware exists but cannot

escape, and against new technology that subjects are not yet aware exists.

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[*1005]

For example, under the current Katz test, the subject of passive millimeter wave

imaging n164 surveillance would not have a subjective expectation of privacy

unless he took steps to protect himself from such surveillance. This test is not

an accurate measure of whether a person expects another party to be measuring

the electromagnetic rays emitted from his body. Most people are not aware of

this surveillance capability and, therefore, would not think to attempt

protective measures against its intrusion. Even if most people did know that

such technology exists, because it is not used commonly they would not expect to

be the subject of its use or know how to protect against its intrusion. It is

natural to assume, therefore, that these subjects do not expect others to be

measuring their emitted electromagnetic rays; that is to say, they have a

subjective expectation of privacy against such surveillance. n165

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n164 See supra note 77.

n165 Of course, evidence could show that the subject in this example did not

have a subjective expectation of privacy. If the subject was aware of the use of

passive millimeter wave imaging and knew how to protect himself against such

surveillance-if this is possible-but took no measures to protect himself, he

would have no subjective expectation of privacy.

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By removing the requirement that the subject take affirmative measures to

protect against new surveillance equipment, this new interpretation of Katz

essentially provides a presumption that the subject has a subjective expectation

against technologies of which he does not know or against which he cannot

protect himself. n166 Although lower courts could begin to construe the Katz

doctrine in this way on their own, n167 the Supreme Court should grant

certiorari to a Fourth Amendment case involving a new technology and establish

this application of the Katz test as the law of the land.

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n166 This interpretation of Katz does not modify the Katz test as dramatically

as it may seem. First, the defendant's presumption of a subjective expectation

of privacy is rebuttable. See supra note 165. Second, the presumption modifies

only the subjective aspect of the Katz test. If a particular surveillance

technology becomes well-known publicly, and if publicly accessible defenses to

that method of surveillance are available, an objective expectation of privacy

against that surveillance method no longer would exist. In this scenario, such

surveillance would not constitute a search, regardless of whether the defendant

had a subjective expectation of privacy, because no societal objective

expectation would exist.

n167 Some courts already have granted a subjective expectation of privacy

against thermal imaging scanners, but only after the defendant took affirmative

steps to prevent such surveillance. See, e.g., United States v. Ishmael, 48 F.3d

850, 854-55 (5th Cir.) (holding that defendants, indoor marijuana growers,

exhibited a subjective expectation of privacy by constructing their laboratory

in great secrecy and building it as a basement to a steel building that was not

visible from a public road), cert. denied, 516 U.S. 818 (1995).

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[*1006]

2. Strengthening the Legal Right to Information Privacy

The second reason that current constitutional interpretation provides

insufficient privacy protection is that the legal right to information privacy

is not strong. The Constitution does not state explicitly that a right to

privacy exists; instead, that right has been "found" by the Supreme Court. n168

The Court has held that an interest in information privacy does exist, n169 but

that an individual's right to privacy in personal information is weak. n170 Just

as the Court gradually expanded privacy in the realm of searches n171 and

reproductive rights, n172 it similarly should expand an individual's right to

privacy with regard to personal information. As the amount and uses of personal

information increase, such information becomes more revealing about a person's

activities and lifestyle. When information networks generate personal

information to such an extent that the information can be used for surveillance

purposes, either in retrospective analysis or in real-time tracking, analyzing

such information effectively becomes a search. A stronger privacy right in

personal information, and the subsequent requirement that agencies obtain a

warrant before conducting such searches, would ensure that individuals' interest

against intrusion and their interest in information privacy would receive

greater protection from government misuse of data.

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n168 See supra notes 37-41 and accompanying text.

n169 See Whalen v. Roe, 429 U.S. 589, 598-602 (1977) (holding that the state

interest in regulating medicine outweighed the information privacy rights of

individuals whose personal information appeared in the database); supra notes

48-51 and accompanying text.

n170 See supra note 52.

n171 See supra notes 24-31 and accompanying text (describing the replacement, by

the Supreme Court, of the trespass doctrine with the Katz test for determining

when a search has occurred under the Fourth Amendment).

n172 See supra notes 37-42 and accompanying text.

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3. Applying the Constitutional Protection of Privacy Against Private Actors

Although a constitutional strengthening of the right to information privacy

would improve individuals' protection against government action, it would not

address the third reason that the Constitution currently does not provide

sufficient privacy protection: The constitutional right to privacy grants

certain privacy interests a legal right against the government, but not against

private actors. n173 Developments in both [*1007] surveillance and personal

information technology, often intertwined, make it easier for nongovernment

entities to acquire and use personal information. n174

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n173 At least one commentator argues that the private sector poses a greater

threat to privacy than does the government. See Petersen, supra note 6, at 165.

n174 One such technological development is the portability of surveillance

equipment. For example, officials expect passive millimeter wave imaging

equipment to become handheld for portable use. See Butterfield, supra note 77,

at A8; Hansen, supra note 76, at 46-48. In addition to technological advances,

political developments also may bring private entities into contact with more

personal information. For example, private corporations likely will implement a

large portion of IVHS technology. One commentator predicts that the federal

government will fund only 20% of IVHS costs. See Norman Y. Mineta,

Transportation, Technology and Privacy, 11 Santa Clara Computer & High Tech.

L.J. 3, 5-6 (1995). Privatization makes "ownership and control of communications

networks . . . very complex. . . . [A] communications system is now . . . put

together and operated by a wide variety of firms." Weingarten, supra note 46, at

742.

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Even a very strong privacy right against the government is of limited use if it

does not protect individuals from private actors with access to the same

information and technology. Although many of the various legislative measures

apply to the private sector, the existing patchwork of statutes provides

insufficient protection. n175 Therefore, constitutional protection of

information privacy must extend to private actors as well as the government.

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n175 See supra notes 135-52 and accompanying text.

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While at first blush such an expansion of the privacy right may seem like a

radical extension of the Constitution's reach, further examination reveals that

it is not a great departure from past constitutional interpretation. For

example, an analysis of Commerce Clause jurisprudence demonstrates that the

Supreme Court has allowed rather tenuous connections to interstate commerce to

justify Congressional regulation of business activity. n176 Although the

Commerce Clause requires an activity to be interstate to fall within Congress's

reach, n177 by expanding the definition of interstate commerce the Court allowed

Congress to assert authority over almost any commercial activity. Similarly, the

Court could allow such tenuous links to private actors in the realm of

surveillance and personal information to establish that they are within the

reach of the constitutional right to privacy. n178 From this position, the Court

[*1008] need take only a small step to expand privacy jurisprudence to

encompass private actors, regardless of their affiliation with the state. n179

Simply including private actors within the reach of the right to privacy with

regard to surveillance and personal information, however, would be preferable to

justifying their inclusion through attenuated connections as this more

straightforward approach would leave no doubt as to whether a particular actor

could escape the Constitution's reach. n180

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n176 See, e.g., Katzenbach v. McClung, 379 U.S. 294 (1964) (holding that a local

restaurant that purchased supplies from out of state and served interstate

travelers affected interstate commerce); Wickard v. Filburn, 317 U.S. 111 (1942)

(holding that wheat grown for personal use affected interstate commerce and was

subject to regulation).

n177 The Commerce Clause grants Congress the authority to "regulate Commerce

with foreign Nations, and among the several States." U.S. Const. art. I, 8, cl.

3.

n178 The Court already has expanded the state action doctrine to include private

actors in contexts where the private actor is performing a traditionally

exclusive public function. See, e.g., Marsh v. Alabama, 326 U.S. 501, 507-09

(1946) (holding that, under the public-function doctrine, owners of the "company

town" of Chickasaw, Alabama, could not restrict free expression by prohibiting

the distribution of religious literature on their privately-owned streets).

n179 This example does not support misconstruing constitutional authority or

creating a subterfuge to achieve a desired result. Instead, it demonstrates that

the Court has expanded constitutional doctrines significantly in the past, and

that doing so again would not be unprecedented.

n180 Numerous articles discuss whether the Court should abolish the state action

doctrine. See generally Erwin Chemerinsky, Rethinking State Action, 80 Nw. U. L.

Rev. 503, 506 (1985) (concluding that "limiting the Constitution's protections

of individual rights to state action is anachronistic, harmful to the most

important personal liberties, completely unnecessary, and even detrimental to

the very goals that it originally intended to accomplish") (citing Henry J.

Friendly, The Dartmouth College Case and the Public-Private Penumbra 17 (1968)

(arguing that the broadening of the state action doctrine to include state

inaction requires a pragmatic rather than a mechanical application); Charles

Black, Jr., Foreword, "State Action," Equal Protection, and California's

Proposition 14, 81 Harv. L. Rev. 69 (1967) (discussing the use of the state

action doctrine to deny state involvement in acts of racism); Paul Brest, State

Action and Liberal Theory: A Casenote on Flagg Brothers v. Brooks, 130 U. Pa. L.

Rev. 1296 (1982) (criticizing the Court's manipulation of the public/private

distinction while purporting to rely on the state action doctrine); Harold W.

Horowitz & Kenneth L. Karst, The Proposition Fourteen Cases: Justices in Search

of a Justification, 14 UCLA L. Rev. 37 (1966) (discussing the utility of the

significant state involvement requirement of the state action doctrine); Michael

J. Phillips, The Inevtiable Incoherence of Modern State Action Doctrine, 28 St.

Louis U. L.J. 683 (1984) (surveying the evolution of the state action doctine

and discussing its inherent contradictions); John Silard, A Constitutional

Forecast: Demise of the "State Action" Limit on the Equal Protection Guarantee,

66 Colum. L. Rev. 855 (1966) (predicting the end of the state action doctrine as

a means of analyzing equal protection violations); Jerre S. Williams, The

Twilight of State Action, 41 Tex. L. Rev. 347 (1963) (forecasting the end of the

state action doctrine as a test for analyzing violations of constitutional

rights)). Detailed analysis of the many issues that this topic invokes is

outside the scope of this Note. Additionally, this Note does not approach the

subject of whether the Court should abolish the state action doctrine

altogether, or only in certain contexts. Instead, it suggests a possible

solution to the inadequacy of constitutional privacy protection regarding the

growing problem of the convergence of surveillance and information technologies.

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The idea of a constitutional right to privacy reaching private actors is not

without precedent: Several states already have developed a right to privacy that

provides [*1009] protection from private actors. n181 Although state

constitutions vary from the United States Constitution, n182 these states'

privacy protections show that a constitutional right to privacy reaching the

private sector is not unreasonable. In fact, a federal privacy doctrine reaching

the private sector may be more reasonable than a multitude of different state

protections, in that a federal right would provide nationwide actors uniform

treatment in all of the states. n183

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n181 In Alaska, California, Hawaii, Illinois, and Louisiana, the state

constitutional right to privacy applies to both the private and the public

sector. See Glancy, supra note 9, at 190-91. In California, for example, the

explicit right to privacy in the Constitution states: "All people are by nature

free and independent and have inalienable rights. Among these are enjoying and

defending life and liberty, acquiring, possessing, and protecting property, and

pursuing and obtaining safety, happiness, and privacy." Cal. Const. art. I, 1.

California courts have interpreted this constitutional guarantee to protect

against government and private parties alike. See, e.g., Porten v. University of

S.F., 134 Cal. Rptr. 839, 842 (1976) ("Privacy is protected not merely against

state action; it is considered an inalienable right which may not be violated by

anyone."). See also McCloskey v. Honolulu Police Dep't, 799 P.2d 953, 956 (Haw.

1990) ("'[I]t is the intent of [this] Committee to insure that privacy is

treated as a fundamental right for the purposes of constitutional analysis.

Privacy as used in this sense concerns the possible abuses [of] highly personal

and intimate information in the hands of government or private parties . . . ."

(quoting Comm. of the Whole Rep. No. 15, reprinted in 1 Proceedings of the

Constitutional Convention of Hawaii of 1978, at 1024 (1980) (discussing Haw.

Const. art. I, 6))); Leudtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123,

1132-33 (Alaska 1989) (finding that, although the Alaska Constitution generally

requires state action, its privacy clause, see Alaska Const. art. I, 22,

contributed to the public policy basis for a right to employee privacy against

private employers); Moresi v. Department of Wildlife & Fisheries, 567 So. 2d

1081, 1092 (La. 1990) (finding that, although no violation of plaintiffs' right

to privacy occurred in this case, the right to privacy guaranteed by the state

Constitution, see La. Const. art. I. 5, "goes beyond limiting state action");

Walinski v. Morrison & Morrison, 377 N.E.2d 242, 244-45 (Ill. App. Ct. 1978)

(finding that the Illinois Constitution, see Ill. Const. art. I, 17, granted a

private cause of action for discrimination against a private employer).

n182 This variation particularly is true in the realm of privacy. Several states

other than Alaska, California, Hawaii, Illinois, and Louisiana acknowledge

explicit privacy rights in their constitutions; unlike these five states,

however, other constitutional privacy provisions do not reach the private

sector. See Glancy, supra note 9, at 177; see also generally Mark Silverstein,

Privacy Rights in State Constitutions: Models for Illinois?, 1989 U. Ill. L.

Rev. 215, 226-58 (1989) (surveying the privacy rights provided by various state

constitutions).

n183 The variation of privacy protections among the states can create

difficulties for organizations that operate in several states. See, e.g., Laura

B. Pincus & Clayton Trotter, The Disparity Between Public and Private Sector

Employee Privacy Protections: A Call for Legitimate Privacy Rights for Private

Sector Workers, 33 Am. Bus. L.J. 51, 54-55 (1995) ("There are inherent problems

with a state-by-state program for privacy protection. Not only are an employee's

rights dependent upon the state in which he or she lives, but the obligations of

a multistate employer become muddled."). Such problems are relevant especially

to information privacy because electronic communication frequently occurs with

no consideration of state boundaries. Put succinctly, "there are no state lines

in cyberspace." Alderman & Kennedy, supra note 43, at 331. A federal right to

information privacy would eliminate the constitutional "patchwork" among the

states.

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[*1010]

Conclusion

Due to developing surveillance and information technologies and the merger of

these technologies, the constitutional right to privacy currently does not

coincide with individuals' interests in privacy. New surveillance equipment

allows surveillants to observe, without a search warrant, that which most

individuals consider private. This surveillance technology, therefore, invades

an individual's privacy interest against intrusion without infringing upon his

legal right to privacy. As such, advances in surveillance technology diminish

the legal right to privacy.

The growing use of personal information in society by both the government and

private actors threatens to diminish further the right to privacy. As

technological advances increase the amount of daily activities that generate

personal information, an individual's ability to control his personal

information decreases. This information reveals much about one's habits and

routine, and a lack of control over one's "data image" diminishes one's privacy.

An even greater threat to privacy stems from the merger of surveillance and

information technologies. When activity-based surveillance generates personal

information, and when information technology allows surveillance uses of

existing personal information, privacy concerns that formerly applied to only

one of these fields now apply to both. IVHS and FinCEN are two examples of this

convergence of technologies. As developments in both fields continue, more

systems that invoke surveillance and information privacy concerns surely will

emerge.

To prevent these technological developments from eroding the right to privacy,

courts need to reexamine that right. The Supreme Court should expand the Fourth

Amendment protection against warrantless searches to include an expectation

against the use of advanced surveillance equipment and against data searches of

personal information. For the latter to occur, the Court must strengthen the

constitutional right to information privacy, which currently is weak. Finally,

because technological and political developments are increasing the role that

private actors play in these merging technologies, information privacy must

protect individuals from private actors as well as the government. One way to

ensure this protection is for the Supreme Court to construe the constitutional

right to information privacy to reach private actors as well as the government.

[*1011]

Over one hundred years ago, in discussing the right to privacy, Justices Warren

and Brandeis had the foresight to realize that "it [is] necessary from time to

time to define anew the exact nature and extent of such protection [due to]

[p]olitical, social, and economic changes." n184 Developments in both

surveillance and information technologies make now such a time. The Supreme

Court must "define anew" the right to privacy, lest these "[r]ecent inventions

and business methods" n185 erode that right until it no longer has meaning.

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n184 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev.

193 (1890).

n185 Id. at 195.

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