KATZ V. U.S.: 40 YEARS LATER - FROM WARRANTLESS WIRETAPS TO THE WAR ON TERROR

MARCH 9, 2007

PANELS

Katz in Context: Privacy, Policing Homosexuality and Enforcing Social Norms

The opening panel will situate the Katz decision within a robust framework.  The five panelists will provide an expansive vision of the realities that shaped the Katz decision and that continue to define and limit its scope.

Moderator: Jennifer M. Chacón (U.C. Davis)
Speakers: Aya Gruber, Christian Halliburton, Erik Luna, Jonathan Simon & David Sklansky

Aya Gruber, Florida International University School of Law

Professor Gruber will address two lines of cases interpreting Katz:  third party cases (White and Greenwood) and dog sniff cases (Caballes).  She argues that these lines of cases violate both the letter and spirit of theKatz majority and concurrence, resulting in doctrine even more conservative than that which a literalist reading of the Fourth Amendment would produce.  These exceptions are particularly dangerous in light of advancing contraband detection technology and increasing transmittal of private information on the Internet.

Christian Halliburton, University of Seattle School of Law

Professor Halliburton will draw connections between Katz’s privacy norm, socio-psychological theories of autonomy and identity, and the threats posed by a species of new investigative technologies.  One theoretical component of his claim is that privacy is dead, and the Katz decision prematurely killed off a superior line of Fourth Amendment analysis.

Erik Luna, S.J. Quinney College of Law, University of Utah

Professor Luna will consider whether judges are the appropriate arbiters of societal expectations of privacy and the possibility that a different institution should be making Katz determinations.

Jonathan Simon, Boalt Hall, UC Berkeley

Professor Simon will explore Katz as a site for a broader defense of the Warren Court’s Fourth Amendment vision and its reliance on judicially enforced social norms as a mechanism for limiting the reach of the police.

David A. Sklansky, Boalt Hall, UC Berkeley

Professor Sklansky will focus on the policing of homosexuality as a suppressed subtext in Katz, and in 1960s criminal procedure more broadly.

Katz: Rights and Remedies

Forty years after the Supreme Court determined that the Fourth Amendment protected “people, not places,” this panel will assess the strength of that protection.  The panelists will examine the ways in which contemporary courts define the limits of an individual’s “reasonable expectation of privacy” and propose alternative frameworks for conducting the appropriate legal analysis.  They will also examine the evolution of remedies available for searches found to be unreasonable under Katz.

Moderator: Floyd F. Feeney (U.C. Davis)
Speakers: Raquel Aldana, Timothy Casey, Sharon Davies & Anil Kalhan

Raquel Aldana, William S. Boyd School of Law at UNLV

Professor Aldana will be exploring what recent ICE workplace raids reveal about how notions of privacy, including the "expectation of privacy" prong of Katz, are determined or influenced by the citizen/alien construction in U.S. law.

Timothy Casey, Case Western Reserve University School of Law

Professor Casey will examine technological advances in surveillance and explore how those advances affect the calculus of what is “reasonable” in a “reasonable expectation of privacy.”  His analysis will reference current (or recent) cases in the lower courts as well as challenges we might look forward to in the near future.

Sharon Davies, Moritz College of Law, Ohio State University

Professor Davies will focus on issues remedies.  Justice Scalia’s majority opinion in Hudson v. Michigan (2006) raises questions about the Court’s future willingness to suppress evidence seized pursuant to a constitutional violation.  It is possible to imagine in the wake of Hudson that violations of the principles of Katz will go the same way, if the Court continues to lean in favor of civil remedies/internal disciplinary procedures, etc., over suppression.  Professor Davies will speak to the evolving remedy for a Katz violation, post-Hudson.

Anil Kalhan, Fordham University School of Law

Professor Kalhan will explore questions of how the “reasonable expectation of privacy” applies to the non-citizen.

Katz in the Age of International Crime and Terrorism

Moderator: Diane Marie Amann (U.C. Davis)
Speakers: Tracey Maclin & Glenn Sulmasy/John Yoo (co-presenting)

In his concurrence in Katz, Justice White left open the possibility that in cases of national security, the President or Attorney General could authorize warrantless wiretaps.  In recent years, events such as the warrantless wiretapping program carried out by the National Security Agency after September 11, 2001, have brought into sharp focus the question of how Katz’ protection should be interpreted in cases involving national security.  Our final panel explores these questions, along with the related question of the degree to which citizenship status limits the protections afforded by Katz.

Tracey Maclin, Boston University School of Law

Professor Maclin will outline the parameters of Fourth Amendment protections provided by Katz and will argue that the National Security Agency’s wiretapping program violates the Fourth Amendment.

John Yoo, Boalt Hall, UC Berkeley & Glenn Sulmasy, U.S. Coast Guard Academy (Co-authors)

Professor Yoo and Professor Sulmasy will co-present a paper questioning the viability of Katz in the war on terrorism.