Choice and necessity

I wanted to discuss the intertwining issues of choice and necessity – as Justice Marshall notes, in order to have some element of risk you need to have choice. We have also seen in previous weeks that technologies or other services that are considered to be essential forms of communication tend to receive special treatment from the government, or at the very least some form of special consideration as to restrictions placed on them – broadcast television and telephones, for instance (and railroads, to add a somewhat random example). These are not simply private technologies that people choose to use or not – rather, they are technologies that also serve an essential public function.

In its various lawsuits, the government is implying that we are all consenting to give our information to third parties, thus rendering Fourth Amendment protections moot, but this strikes me as a “false choice.” (Justice Stewart notes that this is impossible.) Just as Katz noted that it would be impossible to survive without the telephone, it seems that it is increasingly functionally impossible to survive without email and Internet services – both technologies that require us in a very technical sense to give up information to a third party.

So then should we protect these communications (by declaring government surveillance of them to be bona fide Fourth Amendment searches) simply because they are essential technologies? Obviously, this would be taking the idea to the logical extreme. Just because electricity is essential doesn’t mean that our electricity bills can’t be monitored for unusual usage or anything like that. However, I think what’s important here is choice combined with the fact that it is essential. If technologies are essential, but there are multiple choices – I want to suggest something like the airline industry, although I don’t really know if this is the best industry to which to draw parallels – then it should be treated differently from something like the Internet and emails, which are essential forms of communication in the modern day.

It all sort of hearkens back to what the spirit of the Fourth Amendment – while in text the amendment is designed to protect one’s person and physical papers, in recent years the courts have taken this to mean that the point of the amendment is to protect the person, and it seems that in the modern context email and the Internet are logical extensions of this.