2015 Law + Informatics Symposium on Digital Evidence

2015 Law + Informatics Symposium on
Digital Evidence

Friday, February 27, 2015

Complimentary Registration

The Northern Kentucky Law Review and NKU Chase College of Law will host the fourth annual Law + Informatics Symposium on February 27, 2015. The conference will provide an interdisciplinary exploration of digital information in the courtroom, including the importance of ensuring that such information is reliable, resilient, and uncompromised. EU Directives and other governing bodies have addressed these issues in a myriad of approaches, while lawyers, investigators, and technologists may hold differing expectations regarding appropriate digital evidence.

What does the future hold for drone-obtained evidence, public records requests for metadata, government security, and personal autonomy?

Notably, this year’s symposium will include a student scholarship showcase of law review students presenting their student notes on digital evidence issues during a luncheon.

The symposium is sponsored by Northern Kentucky Law Review, NKU Chase Law + Informatics Institute, and the Center for Excellence in Advocacy.

The symposium is anticipated to be approved for five to six hours of general CLE credits in Kentucky, Ohio, and Indiana. Registration is complimentary and includes the anticipated CLE credits, breakfast, lunch, reception, and all published materials.

About the Law and Informatics Institute: The Law + Informatics Institute at Chase College of Law provides a critical interdisciplinary approach to the study, research, scholarship, and practical application of informatics, focusing on the regulation and utilization of information – including its creation, acquisition, aggregation, security, manipulation and exploitation – in the fields of intellectual property law, privacy law, evidence (regulating government and the police), business law, and international law.

Through courses, symposia, publications and workshops, the Law + Informatics Institute encourages thoughtful public discourse on the regulation and use of information systems, business innovation, and the development of best business practices regarding the exploitation and effectiveness of the information and data systems in business, health care, media and entertainment, and the public sector.

For More Information Please Visit or Contact:

 

Faculty Advisors:

  • Henry L. Stephens, professor of law and former dean: 859.572.5389
  • Jack Harrison, assistant professor of law: 859.572.5447

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SUPREME COURT RULES THAT POLICE MUST GET WARRANT BEFORE SEARCHING CELL PHONES

Yesterday, the U.S. Supreme Court ruled in two cases – Riley v. California and U.S. v. Wurie (collectively “Riley”) – that police may not search a person’s cell phone just because the phone is in the person’s possession when he or she is arrested. Instead, the police must either get a warrant to search or else rely on case-specific facts giving rise to individualized suspicion that evidence on the cell phone will be destroyed before a warrant can be obtained. The Riley decision was virtually unanimous, with Justice Alito joining only in part.

After David Riley was arrested in California for a firearms offense, police searched his pockets and found a smartphone. Searches of the contents of the phone disclosed: that Riley had used the term “CK,” short for “Crip Killer,” suggesting that he was a member of the Bloods street gang; videos in which unknown persons used the word “Blood”; and a photo of Riley in front of a car involved in a recent shooting. This evidence was introduced at trial against Riley in California state court to prove his involvement in the shooting and his gang membership.

In a separate case, Brima Wurie was arrested on drug charges in Massachusetts, and police seized a flip phone from him. Police noticed numerous phone calls coming from a contact identified as “My House.” Police searched the phone for the phone number of the “My House” contact, then located the address associated with that number using an online directory. Police then secured a warrant for that address and seized drugs, cash, and a firearm, all of which were introduced at his federal trial on drug and gun charges.

Riley and Wurie each conceded that police had authority to seize their phones pursuant to the “search incident to arrest” (SIA) doctrine, which permits police, without a warrant, to search the person of an arrestee and seize whatever they find. They argued, however, that police went beyond that authority by searching the contents of their phones without a warrant.

The Court agreed. The Court distinguished a 1973 case, U.S. v. Robinson, in which it had upheld as an SIA the search of a cigarette pack obtained from an arrestee. In Robinson, the Court had justified the SIA rule on two grounds: preventing the arrestee from accessing an item that could be used to injure the officer or effect an escape, and preventing him from accessing evidence that could be concealed or destroyed. In Riley, the Court determined that inthe context of a cell phone, the first justification is obviously inapplicable. And the government had shown nothing beyond speculation that searching a cell phone immediately was necessary to avoid having its contents encrypted or remotely wiped.

On the privacy side of the ledger, the Court determined that digital evidence is of a completely different character than the non-digital evidence found in the cigarette pack in Robinson. While a limited number of personal items might be carried in a person’s pockets or purse, cell phones (particularly smartphones) carry a virtually limitless number of items that are quite private in nature: potentially thousands of e-mails and phone and text messages, a veritable music and video library, a daily calendar going back years, GPS location information, an internet browsing history, and dozens of apps. Each of these might reveal very personal information about the arrestee. And the Court said that this was true not only of Riley’s smartphone but also of Wurie’s flip phone. In short, the quantity and quality of information contained on a cell phone is different from non-digital evidence that might be found on an arrestee’s person in the same way that “a ride on horseback is [different] from a flight to the moon.”

In some cases, the Court acknowledged, police will have sufficient suspicion both that a cell phone contains evidence of a crime and that the evidence might be destroyed before a warrant can be obtained. In those cases, the police will be able to search without a warrant, but only if they can point to particular facts and circumstances indicating a need to search imminently. Otherwise, they will have to convince a judge to issue a warrant based on probable cause that the cell phone contains evidence of a crime.

Riley has the potential to be a very significant case. Not only does the ruling have the immediate effect of barring searches of cell phones, and presumably other computer devices, incident to arrest, but it also has broader implications. For the first time, the Court has acknowledged and coherently articulated that digital data are different than non-digital data, not only in degree but in kind. In the years to come, Riley will likely be viewed as the case that brought the Fourth Amendment into the 21st century.

 

Michael J. Zydney Mannheimer

Professor of Law

NKU Chase College of Law

518 Nunn Hall

Highland Heights, KY 41099

859.572.5862

mannheimem1@nku.edu

 

 

Branding: What’s in a Name?

 

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Branding is usually approached from a marketing perspective or from the perspective of a trademark attorney. In this transdisciplinary workshop, hear from experts on market analytics, consumer psychology, and trademark law to learn how to build a better brand for a start-up or a new product line. Participate in a rich discussion with experts in these fields and engage with the concepts through in-class group exercises. Learn why some brands soar and others flop. Earn 1 Kentucky and Ohio CLE credit at this workshop on June 10, 2014 in Blue Ash. Learn more.

Learning Objectives:

  1. Working knowledge of brand equity management principles
  2. An introduction to brand equity management tools, including the Young & Rubricam Power Grid
  3. Discover which words and colors fascinate us neurologically
  4. How to measure your brand equity – an introduction
  5. The basics on how to avoid trademark infringement
  6. How to select marks that may be eligible for federal trademark protection
  7. How to build an integrated legal and business brand management strategy

Special thanks to our facilitators:

  • Kenneth B. Germain, distinguished senior fellow, NKU Chase College of Law; of counsel, Wood Herron & Evans
  • Frank R. Kardes, Ph.D., professor of marketing, UC
  • Aron Levin, Ph.D., professor of marketing, NKU Haile/US Bank College of Business; director, Marketing Research Partnership Program at NKU

This workshop is part of the “Small Business Essentials Series” hosted by the Cincinnati Business Courier and sponsored by NKU Chase College of Law.  NKU Alumni, contact Lindsey Jaeger at 859.572.5783 or jaegerL1@nku.edu for a 15% discount code.

Comprehensive Patent Cooperation Treaty (PCT) Seminar – June 5, 2014 to June 6, 2014

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The NKU Chase Law + Informatics Institute, in cooperation with World Intellectual Property Organization (WIPO), will host a comprehensive Patent Cooperation Treaty (PCT) seminar on June 5-6, 2014 in Highland Heights, Kentucky, near Cincinnati, Ohio.

The seminar will provide patent attorneys, patent agents, patent portfolio managers, paralegals, and law students with a comprehensive understanding of the PCT, an international patent law treaty established to unify patent filing procedures which protect inventions in the PCT’s 148 contracting states.

The one and one-half day seminar will include patent portfolio management strategies for maximizing patent protection and minimizing legal expenses. The seminar will also include best practices, procedures for filing original patent applications in PCT member states, and news about changes related to the PCT.

“This seminar provides a unique and valuable opportunity to learn the intricacies of the PCT process, and how to maximize the benefits achievable through the PCT. I’d highly recommend it to anyone involved in coordinating foreign patent protection,” stated Eric Robbins, a partner at Ulmer & Berne LLP and the chair of its Intellectual Property and Technology Practice Group.  Mr. Robbins attended NKU Chase’s 2012 Comprehensive PCT Seminar, which was attended by IP professionals from around the globe.

Featured speakers are Carol Bidwell and David Reed, U.S. consultants to WIPO on PCT matters.

A total of 12.25 Kentucky and Ohio General CLE credits and Kentucky Paralegal Association CPE credits are anticipated. CLE credits for other states can be arranged upon request.

Registration:

  • General Public: $350
  • NKU Chase College of Law alumni: $250
  • CincyIP Members: $250
  • Non-NKU Students/Full-Time Faculty: $50
  • NKU Chase College of Law alumni who graduated in 2010 or after: $50
  • OPTIONAL ADDITIONAL FEE: Printed Materials: $25
  • Registration includes admission to an advanced patent searching workshop of the USPTO examiners’ databases, PubEAST and PubWEST, in NKU’s Steely Library, a USPTO designated Patent and Trademark Resource Center, on June 6, 2014 from 1:30 p.m. to 3:00 p.m.

Special thanks to WIPO, Frost Brown Todd LLC, IPAC, and CincyIP for their sponsorship. For more information, and to register, visit www.lawandinformatics.org/pct or contact Lindsey L. Jaeger at 859.572.7853 or JaegerL1@nku.edu.  Join the conversation #globalip and #informaticslaw.

Ninth Circuit Provides Important Protection To Bloggers

In an important victory for free speech advocates, the Ninth Circuit has joined other courts in establishing that authors protected by the First Amendment need not be journalists to have such robust protections.

In Obsidian Finance Group, LLC v. Cox, — F.3d —- (2014) (filed Jan. 17th, 2014), the Ninth Circuit overturned a lower court decision that limited certain First Amendment protections to institutional journalists. The Court explained that “protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story.”

In aligning the Ninth Circuit with other circuits which have addressed the issue, the court reaffirms that negligence is the minimum legal standard for any case involving matters of public interest (and possibly all cases). To receive general damages without suffering specific harm and to receive punitive damages, the plaintiff must establish that the defendant published the statements with actual malice, meaning intentional knowledge of falsity or reckless disregard of the truth.

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Supreme Court established the modern First Amendment framework. Public officials must prove actual malice to prove liability. Curtis Publishing Co. v. Butts, 388 U.S. 130, (1967), then extended this standard to public figures. A decade later, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974), the Supreme Court held that the First Amendment required a negligence standard for private defamation actions. Significantly less than the actual malice standard, it nonetheless established that there could not be liability without fault.

In Obsidian Financial Group, the Ninth Circuit does not suggest the defendant is blameless:

Crystal Cox published blog posts on several websites that she created, accusing Padrick and Obsidian of fraud, corruption, money-laundering, and other illegal activities in connection with the Summit bankruptcy. Cox apparently has a history of making similar allegations and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, N.Y. Times, Dec. 11, 2011, at B1. Padrick and Obsidian sent Cox a cease-and-desist letter, but she continued posting allegations.

The accusations and statements, however, were difficult to view as factual assertions. Where there were assertions of fact, the court explains, the plaintiff must establish the negligence of the statements.

The Ninth Circuit also sidestepped the issue whether the Gertz negligence standard applies to matters of purely private concern. It noted the unresolved question, when it stated that “the Supreme Court has ‘never considered whether the Gertz balance obtains when the defamatory statements involve no issue of public concern.’” (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 757 (1985) (plurality opinion)).

Instead, the Ninth Circuit noted that the blog was made available to the public at large, just as every blog does. Moreover, the court noted that “public allegations that someone is involved in crime generally are speech on a matter of public concern.” So instead of answering whether the negligence standard applies to private matters, the court expanded the realm of public discourse to almost any public accusation.

This strategy has the effect of expanding the negligence standard to almost any claim. It may leave certain personal matters personal, though this is unclear. It could also leave certain formats, such as personal emails, texts, and friends’ lists as matters of purely private concern, but undoubtedly many of allegedly defamatory posts on such platforms will also be matters of public concern.

The distinction between matters of public concern and purely private matters has less and less meaning, and the distinction is likely to continue to erode in the context of defamation, though perhaps remain relevant in some issues involving privacy.

Nonetheless, the case is an important victory for free speech interests. Of course, this does not mean anything can be published with impunity. Negligence is not a terribly difficult test to meet and those plaintiffs who have truly been harmed will still have their day in court. It is difficult to be the subject of online attacks, but the rules of law should apply equally to all speakers, journalists, bloggers, and citizens alike. In the Ninth Circuit, it now does.

Two District Courts see NSA very differently

The seal of the U.S. National Security Agency....

(Photo credit: Wikipedia)

On the last day of 2013, the federal district court for the Southern District of New York handed the Obama Administration a sweeping endorsement of the NSA’s bulk telephony metadata collection program. Unlike the decision in Klayman v. Obama, the district court in ACLU V. Clapper began with the terrorist attacks of 9/11 to frame the power of the government to defend national security.

The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda. …

The Government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. It launched a number of counter-measures, including a bulk telephony metadata collection program—a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.

This blunt tool only works because it collects everything. …

If reasonableness stands as the constitutional framework for First Amendment rights of association and Fourth Amendment Rights to be free from governmental searches and seizures, then the reasonable government reaction to terrorism can well be understood to depend on the magnitude of the threat to determine the reasonableness of the government’s response to that threat. As the court highlighted, “[t]he natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program.”

Unlike the Klayman decision, this opinion relies not upon the search and seizure doctrines of Smith v. Maryland442 U.S. 745 (1979) as the distinct powers of the government to conduct foreign and domestic security in United States v. U.S. Dist. Court for East. Dist. of Mich., 407 U.S. 297 (1972).

The court quoted a recent decision interpreting Keith to provide for wide latitude in reviewing surveillance powers.

 Although the Keith opinion expressly disclaimed any ruling ‘on the scope of the President’s surveillance power with respect to the activities of foreign powers,’ it implicitly suggested that a special framework for foreign intelligence surveillance might be constitutionally permissible.

 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013) (quoting Keith407 U.S. at 322- 23) (internal citations omitted).

Klayman and Clapper diverge quickly because they begin at very different points. Klayman emphasized the importance of being the first court to provide a non-secret review of the bulk telephony program. Clapper, in contrast, offers great deference both to Congress and to the FISA judges who have reviewed the secret process. The court notes that “[f]ifteen different FISC judges have found the metadata collection program lawful a total of thirty-five times since May 2006.”

Clapper also sites evidence of success from the program:

The effectiveness of bulk telephony metadata collection cannot be seriously disputed. Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering. Such disclosures can only educate America’s enemies. Nevertheless, the Government has acknowledged several successes in Congressional testimony and in declarations that are part of the record in this case. In this Court’s view, they offer ample justification:

  • In September 2009, NSA discovered that an al-Qaeda-associated terrorist in Pakistan was in contact with an unknown person in the United States about efforts to perfect a recipe for explosives. NSA immediately notified the FBI, which investigated and identified the al-Qaeda contact as Colorado-based Najibullah Zazi. The NSA and FBI worked together to identify other terrorist links. The FBI executed search warrants and found bomb-making components in backpacks. Zazi confessed to conspiring to bomb the New York subway system. Through a section 215 order, NSA was able to provide a previously unknown number of one of the co­conspirators—Adis Medunjanin.[1]
  • In January 2009, while monitoring an extremist in Yemen with ties to al- Qaeda, the NSA discovered a connection with Khalid Oazzani in Kansas City. NSA immediately notified the FBI, which discovered a nascent plot to attack the New York Stock Exchange. Using a section 215 order, NSA queried telephony metadata to identify potential connections. Three defendants were convicted of terrorism offenses.
  • In October 2009, while monitoring an al-Qaeda affiliated terrorist, the NSA discovered that David Headley was working on a plot to bomb a Danish newspaper office that had published cartoons depicting the Prophet Mohammed. He later confessed to personally conducting surveillance of the Danish newspaper office. He was also charged with supporting terrorism based on his involvement in the planning and reconnaissance for the 2008 hotel attack in Mumbai. Information obtained through section 215 orders was utilized in tandem with the FBI to establish Headley’s foreign ties and put them in context with U.S. based planning efforts.

These successes are helpful to begin to understand the program. They do not, however, provide context into the efforts of anti-terrorist activities or explain whether a more focused program would provide equal or greater protections without affecting millions of individuals who have a right to be free from data searching.

Or perhaps the Clapper court is correct that national security is different from criminal investigations and more needs to be done to codify the distinction articulated in Keith. The constitutional question remains what his reasonable under the circumstances. Neither decision has been able to answer that question because too much information and power is left to the discretion of the executive branch and secret proceedings.

Investigations need to be clandestine, but there is no reason that the nature of constitutional protections is not fully understood and debated.

I do not know if the geographic location of the court is relevant, but the shape and culture of lower Manhattan has been transformed by 9/11 in a manner that makes it part of its zeitgeist. Having by coincidence visited the site of the 9/11 memorial with my family the day the Clapper decision was handed down, I was overwhelmed by the thousands of visitors who spoke all languages and came from towns across the world to remember and reflect. The meaning of reasonable takes on different aspects in the shadow of such history. Whether it should do so must also be part of our national debate.

The tension between Klayman and Clapper should lead to a healthier understanding regarding terrorism and surveillance, but only if the two starting points of the two decisions can be understood and reconciled. Liberty is protection from oppression. Oppression can come from the government, its enemies, or the unchecked, mob-like will of the majority. Oppression cannot be stopped with more oppression, only with more liberty.

Klayman and Clapper cannot be reconciled, but the two decisions have the potential to help us find the right path. The lessons of each decision are best understood as part of a dialogue rather than discrete declarations. That dialogue has only begun.


[1] The court explains the Section 215 order as follows:

In 1998, Congress amended FISA to allow for orders directing common carriers, public accommodation facilities, storage facilities, and vehicle rental facilities to provide business records to the Government. See Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105-272, § 602, 112 Stat. 2396, 2410 (1998). These amendments required the Government to make a showing of “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” §602.

After the September 11th attacks, Congress expanded the Government’s authority to obtain additional records. See USA PATRIOT Act of 2001, Pub. L. 107-56, § 215, 115 Stat. 272, 287 (2001) (codified as amended at 50 U.S.C. § 1861) (“section 215”).’ Section 215 allows the Government to obtain an order “requiring the production of any tangible things (including books, records, papers, documents, and other items),” eliminating the restrictions on the types of businesses that can be served with such orders and the requirement that the target be a foreign power or their agent. The Government invoked this authority to collect virtually all call detail records or “telephony metadata.” See infra, Part II. See generally David S, Kris, On the Bulk Collection of Tangible Things, 1 Lawfare Res. Pap. Ser. 4 (2013).

Court hands at least temporary rebuke to NSA for domestic spying

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NSA (Photo credit: shawnblog)

The New York Times has been highlighting the federal government defeat in the first lawsuit over NSA surveillance of U.S. telephone and internet activity outside the FISA court jurisdiction. The decision in Klayman v. Obama represents a strong rebuke to the NSA. Written in a tone of outrage, the district court decision emphasizes the profound differences that exist in the current NSA surveillance program from the historical precedents upon which the claim of constitutionality is based.

In Smith v. Maryland, 442 U.S. 745 (1979), the Supreme Court held that the use of a “pen register” was not a violation of the Fourth Amendment because the information sent to the telephone company was a business record provided without a reasonable expectation of privacy.[1] The pen register records only the numbers dialed on a telephone. Any expectation of privacy that could exist in the telephone numbers a person dialed was unreasonable.

From the diminutive pen register acorn, a mighty oak has grown to obliterate the sunlight that once shined light on government activities. That oak is the pervasive surveillance program:

[T]he almost–Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. … The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction. By comparison, the Government has at its disposal today the most advanced twenty-first century tools, allowing it to “store such records and efficiently mine them for information years into the future. … Records that once would have revealed a few scattered tiles of information about a person now reveal an entire vibrant and constantly updating picture of the person’s life.”

Critics of the district court opinion point to the precedent of Smith to suggest that the decision reflects an activist agenda, but proper case analysis requires a judge to look to the facts of a case rather than a simplistic summary of the rule. Factually, the public expects far more privacy in the metadata disclosed on their computers, phones, tablets, and mobile devices than the 1979 consumer expected from the telephone company.

In addition, as the court highlighted, the relationship between the telecommunications companies and the government could be viewed as making the telco’s agents of law enforcement. As agents of the police, the third party doctrine no longer applies.

More importantly, the scale of the surveillance and the mosaic of coverage creates a vastly different experience than that previously adjudicated in Smith or the other decision before the Supreme Court.

In United States v. Jones, 132 S. Ct. 945 (2012), the Supreme Court started to review the potential for wide-scale extensive surveillance. The majority decision demurred on the question, finding a search occurred using common law trespass analogies. But five justices opined that the mosaic of surveillance has a constitutional consequence that will need to be addressed.

Dan Solove has written on both the Klayman decision and the importance of privacy in metadata. His conclusion:

 Smith, and many other Fourth Amendment cases, need to be rethought in light of modern technology where surveillance can be so systematic and pervasive. There is a real difference between being able to engage in a small discrete amount of surveillance and having such broad and sweeping surveillance powers as the NSA is exercising. The challenge is where to draw the lines. This problem exists mainly because Smith still remains viable and must be dealt with. I think it’s time for Smith to be overturned, and so there wouldn’t be such line-drawing challenges.

The Katz approach to expectation of privacy may not be the most useful tool for assessing the scope of pervasive privacy. Despite the coverage of the NSA, I expect that few members of the public can truly comprehend the extent to which the movement of every communication, every Internet-connected device, all information on those devices, the tracking of other objects that are reported to central databases, and photographs and video taken by anyone can be integrated into a pervasive picture of movement. Is this science fiction? Or is it the goal of the NSA five-year strategic plan. Unless the courts or Congress begin to say no to a mosaic of unrelenting surveillance, this plan will be enacted soon. With taxpayer dollars. And without oversight.

The decision is being appealed.


[1] Smith explains the constitutional privacy framework: The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In determining whether a particular form of government-initiated electronic surveillance is a “search” within the meaning of the Fourth Amendment, our lodestar is Katz v. United States, 389 U.S. 347 (1967). In Katz, Government agents had intercepted the contents of a telephone conversation by attaching an electronic listening device to the outside of a public phone booth. The Court rejected the argument that a “search” can occur only when there has been a “physical intrusion” into a “constitutionally protected area,” noting that the Fourth Amendment “protects people, not places.” Because the Government’s monitoring of Katz’ conversation “violated the privacy upon which he justifiably relied while using the telephone booth,” the Court held that it “constituted a `search and seizure’ within the meaning of the Fourth Amendment.”