Vol 7 No 1 - Roger Williams University School of Law

communicating over the Internet possess some level of asubjective expectation of privacy in the URL and IP informationthat Carnivore uses to conduct electronic surveillance. However,the real question in the analysis is whether society is ready torecognize such an expectation.Society’s ExpectationThis second, and more difficult prong of the two part Katz testto satisfy, addresses whether society is prepared to recognize areasonable expectation of privacy in the electronic communication.The Supreme Court has stated that society is not willing torecognize an individual’s expectation of privacy unless thatexpectation is “objectively reasonable.”63The Katz court defined objective reasonableness in the form ofa two-factor application. The first factor addresses whether theindividual attempted to deny public access to hiscommunication.64 The second factor focuses on whether lawenforcement has intercepted the content of the individual’stransmission.65Katz involved the warrantless recording of a telephoneconversation an individual had in a public phone booth that hadbeen bugged by law enforcement officials. Applying these twofactors, the Court determined that the individual subjected to thesurveillance had an objectively reasonable expectation of privacyin using the phone booth because he had taken steps to denypublic access to his conversation.66 Also, law enforcement had fullaccess to the content of the individual’s phone conversationbecause they had placed a recording device on the exterior of thebooth itself.In the years since Katz, at least with respect to those caseswhere the Court has been presented with more traditionalparameters,67 the Supreme Court’s reasoning and application of63. California v. Greenwood, 486 U.S. 35 (1988).64. Katz, 389 U.S. at 351.65. Id. at 354.66. Id. at 347.67. See Allegra Knopf, Privacy and the Internet: Welcome to the Orwellian World,11 J. Law & Pub. Pol’y 79, 83 (1999) (discussing how the Katz framework has appliednicely to situations where society holds conventional notions of public and privateplaces).