Editor’s note: This article is the first in a two-part series.
In last month’s column, “Cyberprivacy: It’s Hard to Know What’s Fair or Foul,” I looked at the legal issues that arose when the federal government sought to obtain a writ under the All Writs Act to have Apple decrypt iPhones used by the San Bernardino, California, shooter in the 2015 terrorist attack. We touched upon Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967), which held that law enforcement needed a search warrant to conduct a wiretap, and which announced, in Justice Marshall Harlan’s concurring opinion, the “reasonable expectation of privacy” test that is, at least putatively, still the touchstone of Fourth Amendment analysis. Specifically, we noted that Katz reversed Olmstead v. United States, 277 U.S. 438 (1928), which found that no search warrant was needed to do a wiretap because there was no physical trespass involved, while Katz turned on the fact that a person-to-person conversation was considered “private.”
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