Technologyxs_effect_on_Privacy_and_4th_amendment_1

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1 Copyright (c) 2007 Northwestern University, School of Law Winter, 2007 LENGTH: 16700 words SYMPOSIUM: TECHNOLOGICAL CHANGE AND THE EVOLUTION OF CRIMINAL LAW: WHY 2007 IS NOT LIKE 1984: A BROADER PERSPECTIVE ON TECHNOLOGY'S EFFECT ON PRIVACY AND FOURTH AMENDMENT JURISPRUDENCE NAME: RIC SIMMONS* BIO: * Assistant Professor of Law, Moritz College of Law at the Ohio State University. I am grateful for the extensive editing and feedback provided by Professor Angela Lloyd and the research assistance and comments provided by Courtney Cook, J.D. 2007. SUMMARY: ... Technological advances have generally been seen as the enemy of privacy, giving the government advanced tools to monitor our most intimate activities. . .. It is plainly within the words of the [Fourth] Amendment to say that the unlawful rifling by a government agent of a sealed letter is a search and seizure of the sender's papers or effects. . .. But because Smith used a telephone, the police were forced to respond with their own new technology - in this case, a device which could track outgoing telephone calls. . .. In these situations, just as when surveillance technology makes it impossible to hide information from the government, Congress should intervene to maintain the proper balance between an individual's right to privacy and the needs of law enforcement. . .. Although it may seem counterintuitive, improved surveillance technology could actually help to increase individual privacy in the future in two ways, by allowing for more refined and less intrusive searches and by increasing the monitoring of law enforcement. . .. The second way in which new surveillance technology can enhance privacy is by using technology to monitor the activities of law enforcement. . .. There are some glaring exceptions to this rule, particularly with regard to responsive surveillance technology, when courts have struggled to determine the appropriate level of privacy for a new method of communication. . .. HIGHLIGHT: [*531]
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2 Technological advances have generally been seen as the enemy of privacy, giving the government advanced tools to monitor our most intimate activities. This Article takes a broader look at the effect of new technologies and privacy, and comes to the opposite conclusion: over the past one hundred and fifty years, new technologies have for the most part enhanced our privacy, and many of the invasive surveillance technologies that the government now uses are simply a response to this enhanced level of privacy - that is, an attempt to return to the former balance between individual privacy and law enforcement needs. The Article first examines the ways in which new technology has enhanced our privacy, and then examines the effect of new technology on government surveillance, dividing surveillance technologies into three categories: those that allow government agents to do what was previously impossible; those that allow government agents to
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