Together with the Electronic Frontier Foundation and the American Booksellers Foundation for Free Expression, today we asked the Ninth Circuit Court of Appeals to reconsider its decision (PDF) that the government does not need a warrant to monitor the Web sites people read. The brief, submitted in United States v. Forrester, points out that people reasonably expect to be able to read the Web without the fear that the government is looking over their shoulder.
The issue of Web privacy is one small aspect of the larger, fascinating, and unresolved question of how to apply the protections of the Constitution to the Internet. Technological change often prompts a reevaluation of the Constitution’s meaning. In 1877, the Supreme Court concluded that the Fourth Amendment protects postal mail. Ninety years later, in United States v. Katz, the Supreme Court considered the novel question whether the Fourth Amendment’s protection extends beyond postal mail to telephone conversations. It held that it does, and set out the general principle that the Fourth Amendment protects individuals whenever they have a reasonable expectation of privacy.
Thirty years after that, in 1997, the Court first addressed the application of the Constitution to Internet communications. That year the Supreme Court extended full First Amendment protection to the Internet in ACLU v. Reno, recognizing that “the content on the Internet is as diverse as human thought.” In Forrester, we are asking the Court to grant Internet speech full Fourth Amendment protection as well. One of the reasons the Internet is such a powerful means of communication is that individuals are free to explore their ideas and interests free from the fear of social stigma or government observation. Privacy and free speech go hand-in-hand.