It's Too Complicated: How the Internet Upends Katz, Smith, and Electronic Surveillance Law

88 Pages Posted: 8 Jun 2016 Last revised: 10 Nov 2016

See all articles by Steven M. Bellovin

Steven M. Bellovin

Columbia University - Department of Computer Science

Matt Blaze

University of Pennsylvania - School of Engineering & Applied Science

Susan Landau

Worcester Polytechnic Institute (WPI)

Stephanie K. Pell

West Point--Army Cyber Institute; Stanford University - Stanford Law School Center for Internet and Society

Date Written: November 9, 2016

Abstract

For more than forty years, electronic surveillance law in the United States developed under constitutional and statutory regimes that, given the technology of the day, distinguished content from metadata with ease and certainty. The stability of these legal regimes and the distinctions they facilitated was enabled by the relative stability of these types of data in the traditional telephone network and their obviousness to users. But what happens to these legal frameworks when they confront the Internet? The Internet’s complex architecture creates a communication environment where any given individual unit of data may change its status — from content to non-content or visa-versa — as it progresses Internet’s layered network stack while traveling from sender to recipient. The unstable, transient status of data traversing the Internet is compounded by the fact that the content or non-content status of any individual unit of data may also depend upon where in the network that unit resides when the question is asked. In this IP-based communications environment, the once-stable legal distinction between content and non-content has steadily eroded to the point of collapse, destroying in its wake any meaningful application of the third party doctrine. Simply put, the world of Katz and Smith and the corresponding statutes that codify the content/non-content distinction and the third party doctrine are no longer capable of accounting for and regulating law enforcement access to data in an IP-mediated communications environment. Building on a deep technical analysis of the Internet architecture, we define new terms, communicative content, architectural content, and architectural metadata, that better reflect the structure of the Internet, and use them to explain why and how we now find ourselves bereft of the once reliable support these foundational legal structures provided. Ultimately, we demonstrate the urgent need for development of new rules and principles capable of regulating law enforcement access to IP-based communications data.

Keywords: metadata, content, non-content, third-party doctrine, pen register, Internet, IP-based communications, Ex Parte Jackson, Katz v. United States, Smith v. Maryland, United States v. Warshak, Fourth Amendment, wiretap

Suggested Citation

Bellovin, Steven M. and Blaze, Matt and Landau, Susan and Pell, Stephanie K., It's Too Complicated: How the Internet Upends Katz, Smith, and Electronic Surveillance Law (November 9, 2016). Harvard Journal of Law and Technology, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2791646

Steven M. Bellovin

Columbia University - Department of Computer Science ( email )

New York, NY 10027
United States

Matt Blaze

University of Pennsylvania - School of Engineering & Applied Science ( email )

220 S 33rd St
Philadelphia, PA 19104
United States

Susan Landau (Contact Author)

Worcester Polytechnic Institute (WPI) ( email )

100 Institute Road
Worchester, MA 01609
United States

Stephanie K. Pell

West Point--Army Cyber Institute ( email )

600 Thayer Rd
West Point, NY 10996
United States

Stanford University - Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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