I think Kerr’s piece did a great job of really crystallizing and clearly exploring an issue which has come up in various ways throughout our discussions and readings recently. The question is when looking at how to adjust the laws for new technologies, how do we look at what the original law “was supposed to be” (as if we could ever really know this). Were the privacy laws designed the way they were because they knew that primitive technologies and human observations could only do so much to infringe on a person’s privacy, or were they intended to be timeless, regardless of technological advances? The analogy that first comes to mind would be this: were underage drinking laws passed with the understanding that when a minor has some of his parent’s wine at a restaurant nobody cares, or, if there could be some sort of alcohol detector chip implanted in each of us, would the law intend for a minor to be flagged as breaking the law if a drop of alcohol entered the body? (I realize this is an issue which people will have lots of other complicating personal views on, but the principle remains the same).

So, as we move into the age of this supposed Surveillance State, do we or do we not adapt the laws?

Though Kerr did a good job of going through the issues, I do not completely agree with his perspective on what to do with the advent of all these technologies. Simply stated, I do not think that just because there were certain inherent restrictions because of the technology our founders had, this means that they only expected those technologies to be used in searches. If there is a better technology that can more accurately track people and help law enforcement, why not use it? In some cases, the answer may be that it invades privacy, and therefore we should not use it. However, I found Kerr’s approach to be more along the lines of “if it wasn’t a feasible option then, we probably shouldn’t be doing it now.” In many cases, I think that foolishly restricts law enforcement and the ability of the government to better serve its citizens. For instance, if it were once hard to detect some forms of money-laundering (and clearly prosecuting people for this is one of the government’s jobs), if new software can scan bank records for various patterns and signs of money-laundering, shouldn’t we utilize it? Assuming this can be done in a way which does not violate people’s privacy, it seems strange to me to argue that because the laws were made at a time when preventing money-laundering could only be done ineffectively, we should continue to do this ineffectively. The question to be debated, then, is simply how much can we use these more effective technologies without them impeding on civil liberties?

This sort of brings me to my final point, which relates to sharing of information between law enforcement agencies. The current laws, which prevent information sharing under various conditions, seem to be an extension of an outdated and ineffective way of operating. As the 9/11 report shows, this kind of information sharing can be crucial to national security (and obviously also to many smaller-scale law enforcement efforts). The United States v. Isa case also provides a good illustration in my opinion. The case, I believe rightfully, found that once the government has done a legitimate search, what it finds can be used for purposes other than the original purpose of the search (this is akin to a police having a search warrant to look for explosives in a house, and then seeing cocaine lying out on the table). The point is if a legal search is being conducted, how can the government afford to ignore important evidence it finds? Concealing information between agencies is tantamount to simply ignoring the evidence in many cases, since other branches cannot act upon it. However, there are also compelling reasons to say that not everything the government knows about you should be available to every government official (a police officer does not need to know the details of your tax filings and medical situation). So how do we regulate this massive information regime that our government is becoming on order to make sure that all law enforcement can have access to all relevant information about a person, but not to superfluous information? What type of information is “relevant” for law enforcement purposes?