University of Pittsburgh Law Review SPRING 1999

Article

*745 SECRETS AND LIES: NEWS MEDIA AND LAW ENFORCEMENT USE OF DECEPTION AS AN INVESTIGA- TIVE TOOL

Bernard W. Bell [FNa1]

Copyright (c) 1999 University of Pittsburgh Law Review; Bernard W. Bell

Table of Contents

I. Overview 749

II. The Law of Privacy 755

III. Equal Treatment, Underenforced 762 Norms, and Ex Ante Review

A.Privacy as an Equal Treatment 762 Principle: “All Animals Are Equal, but Some Animals Are More Equal Than Others”

1.Theory: All Animals Are Equal 762

2.Practice: But Some Animals Are 773 More Equal Than Others

a.Sovereign Immunity 781

b.Differing Missions 785

c.Dissemination of Information 791

B.Privacy as an Underenforced 793 Norm

1.The Underprotection of Privacy 793

a.General Privacy Intrusions 793

b.Undercover Operations 796

2.Underenforced Norms Theory 800

a.Decision by Politically-Account- 802 able Decision-Makers

b.Equal Treatment 809

c.Scholarly and Judicial Use of the 811 Underenforced Norms Approach

3.Non-Judicial Review of Police 813 Undercover Operations

4.Underenforced Norms and the 817 Media

C.Privacy and Ex Ante Determina- 819 tions

IV. Controlling the Use of Undercover 825 Operations by Law Enforcement and the Media

A.Law Enforcement 826

B.The News Media 827

V. Conclusion 835

*746 We all have secrets. The use of deception to uncover those secrets (i.e., the use of undercover techniques) has become endemic. Law enforcement officers use undercover techniques to infiltrate the mafia, enforce narcotics laws, apprehend prostitutes or “johns,” test the integrity of public officials, and catch thieves who seek to sell stolen property. [FN1] The press conducts numerous undercover operations, and regularly reveals the results with aplomb in print and on television. Journalists have impersonated patients and employees to report on conditions in nursing homes, mental institutions, veterans administration hospitals, and day care facilities. [FN2] They have represented themselves as ordinary consumers to expose and report on all manner of commercial dishonesty. [FN3] Private individuals also use undercover means for purposes ranging from investigating the fidelity of their spouses, [FN4] to testing the integrity of their employees, [FN5] to uncovering racial discrimination. [FN6]

As a society, we find living with the use of such deception disconcerting, yet we dare not abandon such techniques. [FN7] Undercover techniques*747 provide an efficient and effective means to reveal secrets society needs to know-either to sanction wrongdoers and frustrate their plans, or to warn potential victims. [FN8] On the other hand, undercover techniques require betrayal. [FN9]

The ABSCAM operation, in which FBI informants offered bribes to members of Congress leading to several convictions, sparked a reevaluation of law enforcement's use of undercover techniques. [FN10] Recent events may provoke a significant reevaluation of media use of such techniques. The recent successful effort by the publisher of The Globe, a tabloid, to show Frank Gifford engaging in an illicit sexual relationship [FN11] and the *748 jury verdict against ABC, Inc. for successfully placing two producers of the TV news magazine PrimeTime Live into Food Lion stores to observe and report on the sanitariness of store conditions [FN12] have ignited (or perhaps merely intensified) debate concerning journalists' use of undercover techniques. [FN13]

Surprisingly little comparative examination of privacy intrusions by law enforcement and media has been attempted, nor have scholars compared law enforcement and media undercover operations. [FN14] Several courts and commentators have recognized that United States Supreme Court doctrine, at least on a superficial level, makes a comparison of law enforcement, the media, and the general public extremely apt. [FN15] Moreover, some undercover operations and other types of privacy intrusions involve both law enforcement officers and journalists. [FN16] In other instances, media and law enforcement appear to engage in very similar conduct. Journalists' recordings of Dick Morris's and Frank Gifford's sexual liaisons (with the cooperation of their sexual partners) resemble the FBI's taping of Marion Barry's liaison with a former girlfriend, which led to his conviction for possession of cocaine. [FN17] This article seeks to remedy the lack *749 of comparative analysis, and, in the process, should advance the debate regarding both media and law enforcement undercover operations.

Part I of this article will provide an overview and introduce the three concepts crucial to a comparative examination of law enforcement and press undercover operations: equal treatment, underenforced constitutional norms, and ex ante review. Part II will discuss basic doctrines of privacy law applicable to law enforcement (namely the Fourth Amendment) and the news media (generally common law tort actions). Part III provides the heart of the analysis. It explains the equivalence of the rights of law enforcement and the press in theory, and the discrepancies between those rights in practice. It explores the propriety of treating much of the privacy law as embodying underenforced constitutional norms, and reveals the differing implications of the concept for law enforcement and media undercover operations. Finally, it examines the role of ex ante review in protecting privacy. Part IV explores some tentative suggestions for addressing the dilemma posed by undercover operations. The recommended approaches with respect to law enforcement and the press will differ. Control of law enforcement operations can be enhanced by activating the political processes and ensuring ex ante judicial review; control of media undercover operations will require the application of generally applicable principles. I will suggest that the court in Food Lion, Inc. v. Capital Cities/ABC, Inc. made a fundamental error-it judged the press by a more demanding standard than generally applicable.

I. Overview

Exploring the limits of deception to obtain information others conceal requires analysis of the law of privacy. Admittedly, deception and privacy are conceptually distinct. Deception can occur without any invasion of privacy. Various official denials that the United States provided arms to Iran or that White House officials sanctioned the Watergate break-in certainly involved deception, but that deception had little or nothing to do with invading anyone's privacy. Indeed, deception can sometimes serve to protect privacy. [FN18]

Conversely, some invasions of privacy do not require deception. For instance, a news organization may quite conspicuously train binoculars, *750 sophisticated listening devices, and thermal imaging devices on a person's home. Privacy has been invaded, but no deception is involved. Similarly, a photographer who follows a person incessantly, recording the person's every move, has arguably invaded the person's privacy, but has not employed deception. [FN19]

In considering undercover operations, however, privacy and deception must be considered in tandem. Deception is one major technique intruders can employ to invade privacy. People allow some to see what they shield from others. Thus, if intruders assume false identities, they can gain access to information about others that would not voluntarily be revealed to them. The effect on privacy is no less, and perhaps is greater, than physical intrusions.

Thus, deception to discover information should be analyzed as a privacy issue. Even if we do so, however, some undercover investigations seek information we would not consider private. The restaurant critic who pretends to be a regular customer, the journalist who pretends to be a taxicab fare and records his interaction with the cab driver, the housing tester who pretends to need a dwelling and records his interaction with a realtor, or even the television producer who obtains a job at a food processing plant and records food-handling practices she observes, might all be viewed as gathering only public information. Rather than distinguish public and private information at this point, suffice it to say that all of these situations have implications for privacy, even though we may consider any privacy interest insubstantial or outweighed by countervail- ing interests in some of these circumstances.

My analysis of privacy and undercover operations focuses on three concepts: equal treatment, underenforced norms, and the distinction between ex ante and ex post review. The equal treatment principle has given rise to a discrepancy between judicial doctrine and practice. On a doctrinal level, the United States Supreme Court (and in large measure the state courts as well) has equated the rights of each potential privacy intruder with those of all other potential privacy intruders, even equating their respective rights to use undercover techniques to effect such intrusions. Law enforcement can intrude upon privacy by undercover means or otherwise (at least absent a warrant, individualized suspicion, or the equivalent) only to the extent that they do not offend reasonable expectations of privacy. Courts judge the reasonableness of privacy expectations by reference to other citizens' *751 right to intrude. The media's right to intrude, as defined in constitutional cases involving the right of access to governmental institutions and cases involving common-law tort claims, is similarly pegged to ordinary citizens' rights-the press can intrude upon a person's privacy only in the manner any other citizen can intrude upon that privacy. Thus, at least nominally, law enforcement, the press, and the general public enjoy the same right to intrude. This equal treatment approach theoretically serves to energize the political process to defend privacy against all intruders.

Judicial practice departs from this equal treatment principle because everyone accords varying degrees of privileged access to their secrets. The Supreme Court has held that law enforcement can intrude in ways that those who have most privileged access, e.g., banks and telephone companies, can intrude. Thus, law enforcement can intrude in ways that journalists and members of the general public cannot. The discrepant results in challenges to law enforcement and media undercover operations highlight the privileged access law enforcement receives in practice. The media has been sanctioned for engaging in undercover operations in circumstances where law enforcement clearly would not be- Food Lion provides a good example of the Judiciary's greater willingness to censure media undercover operations.

This suggests a need to reevaluate the courts' nominal equality principle. In some ways, law enforcement use of undercover techniques merits greater scrutiny. The police are less constrained by: 1) the risk of prosecution for violating the law in the course of an undercover operation, 2) the need to obtain the cooperation of third parties, and 3) the expense and physical danger of such operations. Indeed, law enforcement often conducts more complex and intrusive undercover operations than does the media.

One can, nevertheless, suggest several countervailing considerations that justify, or at least explain, the preferential consideration courts accord law enforcement undercover operations. As we shall see, most are deficient. Sovereign immunity could at least explain, though perhaps not justify, the discrepant case results. Law enforcement has sovereign immunity, so it is not liable for damages. On the other hand, the media lacks such immunity. Law enforcement undercover operations may violate targets' common law rights, but, given the unavailability of damages, no remedy exists. Members of the press have a right to publish the results of their undercover operations, but they can be sued for damages, because they lack the protection of sovereign immunity. Ultimately, sovereign immunity alone does not provide a persuasive explanation for the *752 discrepant treatment of law enforcement officials and journalists. Supreme Court statements concerning the necessity of undercover operations, and several holdings creating exceptions to important principles in order to further law enforcement undercover operations conflict with the theory that but for sovereign immunity courts would call law enforcement to task for its use of undercover techniques.

A legal realist explanation of the judiciary's tolerance of law enforcement operations might highlight the difference in the missions of law enforcement and the press. Law enforcement's mission, apprehending and convicting criminals, simply merits more solicitude than the press's mission, informing the public. Given the importance of informed, as well as “uninhibited, robust, and wide-open,” [FN20] public debate in our democratic society, and the complementary nature of informing potential victims and punishing perpetrators, the difference in missions does not justify the discrepant treatment of law enforcement and the press. Moreover, the Constitution provides a process for granting law enforcement officers exceptional powers to intrude upon privacy to enforce criminal laws-it authorizes the issuance of warrants upon probable cause-and we should rely upon that process to satisfy the special needs of law enforcement.

Ultimately, the best justification for the courts' distinction between law enforcement and the press rests upon the difference in the public's power to supervise the respective institutions. Law enforcement officials can be made accountable to elected executive and legislative officials; the press cannot. Thus, courts need not act alone to protect privacy against law enforcement intrusion. The underenforced norms concept, the second of the three concepts on which my analysis concentrates, addresses situations in which courts have difficulty enforcing constitutional values without assistance from the other branches of government.

Courts sometimes rely on elected officials' supervisory power over law enforcement to protect constitutional interests, and use legal doctrine not so much to define the legally-enforceable contours of the interest as to encourage elected officials to defend those constitutional interests. Scholars have coined the term “underenforced constitutional norms” to describe such constitutional interests. The courts often resort to the above-described approach for institutional reasons-they confront an issue that eludes resolution by judicially-administrable standards or requires deep intrusions into the prerogatives of the political branches of government.

*753 The concept of underenforced norms, often discussed in a constitutional law context but rarely explored in the context of criminal procedure, may explain the United States Supreme Court's seemingly “tin ear” regarding privacy issues in general and the use of undercover techniques in particular. The Court reaches incomprehensible decisions, concluding, for example, that police breach no reasonable expectation of privacy by examining a depositor's bank records, rummaging through a homeowner's curbside trash, or using a government agent to establish a close relationship with a person and tape record those private conversations. Perhaps these cases do not reflect a substantive determination of the proper bounds of privacy, but instead the Court's refusal to define those boundaries, based on skepticism of its own ability to weigh privacy against competing interests. Applying an equal treatment principle allows the Court to accord privacy some protection without having to balance competing interests.

Courts can employ at least two techniques to encourage protection of underenforced norms by elected officials: 1) requiring politically-accountable, high-level officials to make any decisions implicating the constitutional interest, and 2) making government officials impose equal burdens on every citizen's constitutional interests. High-level political officials might be expected to constrain infringements upon constitutional interests because, presumably, a large segment of the electorate to whom the officials are accountable value the threatened interest. For example, requiring legislators to make explicit their intent to mandate retroactive application of a statute or to impinge upon state sovereignty may serve to protect the constitutional interests threatened by such laws. Indeed, even in the law enforcement context, state and local elected officials have placed restraints on police use of deadly force, high-speed vehicular chases, and strip searches.

Requiring high-level decisionmaking, however, may not sufficiently constrain the use of undercover techniques. First, privacy concerns are generally invoked by proven miscreants. Second, privacy intrusions may fall most heavily on racial minorities. Third, high-level officials can make decisions influencing undercover operations surreptitiously. Under these conditions, high-level decisions by politically-accountable officials may not fully sensitize decisionmakers to privacy interests. The constraints upon undercover operation can be enhanced by requiring government officials to subject all citizens to such operations on an equal basis. The Supreme Court has required government officials to impose equal burdens on all citizens in at least two Fourth Amendment contexts *754 (namely when the government establishes roadblocks and conducts administrative searches). Courts would find enforcing such a requirement impossible in the undercover context. Because of the difference in the types of crimes committed by members of different socio-economic groups, mandating equal intrusion upon all citizens would require mandating “equal” commitments of resources to various categories of crime, clearly intruding upon the prerogatives of the executive branches of the federal, state, and local governments. Nevertheless, treating privacy as an underenforced norm, and engaging the political branches of government in the effort to preserve privacy holds some promise.

With respect to the press, of course, the underenforced norms approach holds no promise at all. The press must remain independent of governmental, or even public, control. Thus, courts could not mandate high-level decisionmaking or equal treatment of all potential targets, and such requirements would do little to activate “political” constraints on media undercover operations.

The third organizing concept of this article is ex ante review. Such review can complement the use of underenforced norms techniques with respect to law enforcement, but, again, not journalists. The propriety of prospective law enforcement intrusions, particularly intrusions like undercover operations, which must be planned in advance, can be examined and judged by politically-accountable officials or by judges before the intrusion takes place. High-level officials or judges can evaluate in advance whether the information sought justifies the intrusion and whether the likelihood of finding information is sufficient to justify the intrusion. The Constitution's “warrant” requirement exemplifies such an ex ante approach, and Congress has mandated a similar approach in other areas where privacy is at risk (e.g., access to bank records and customer proprietary network information). Thus, judges could be authorized to conduct ex ante review, which would supplement the political protections that the underenforced norms approach seeks to encourage.

Requiring journalists to justify their use of undercover techniques by convincing a judge of their investigation's importance, and the likelihood of uncovering “newsworthy” information, would conflict with the independence of the press and require excessive judicial intrusion into the editorial process. Thus, any review of journalists' use of undercover techniques must be ex post.

Ultimately, law enforcement undercover operations could be constrained by a combination of several techniques: 1) requiring approval of the operation by high-level, politically-accountable officials, 2) requiring *755 that the use of such techniques, absent probable cause or reasonable suspicion, be made according to regulations or standards that would be subject to some public debate, 3) providing for ex ante judicial review, and 4) requiring that law enforcement officers disclose undercover operations that do not reveal any wrongdoing. With respect to the press, a strategy of establishing and enforcing rules of general applicability holds the most promise for restraining undercover operations. For instance, courts could impose liability upon anyone who, by deception, enters a confidential or intimate relationship for the purpose of uncovering and publicizing another's confidences.

II. The Law of Privacy

Society has established different regimes for protecting privacy against potential intruders. The legal foundations for protecting privacy against law enforcement (and, more generally, government officials) differ from the legal foundations for protecting privacy against other private citizens. [FN21] The Fourth Amendment of the United States Constitution provides the primary protection of privacy against law enforcement intrusion. [FN22] It limits government agents' power to conduct “searches and seizures”; [FN23] such searches and seizures cannot be “unreasonable,” [FN24] and *756 sometimes can proceed only pursuant to a warrant issued upon probable cause. [FN25] The courts enforce the Amendment by means of the exclusionary rule-any evidence obtained in violation of the Amendment cannot be used in a criminal trial against the person whose rights have been violated. [FN26] Moreover, people whose Fourth Amendment rights have been violated may have an implied right of action for damages against the government officials who violated their rights. [FN27]

With respect to undercover operations, the Supreme Court has held that the Fourth Amendment does not limit law enforcement's use of deception. [FN28] Moreover, undercover officers or informants may electronically record (and/or transmit to others) the conversations in which they participate. [FN29] Thus, law enforcement officials may target persons for an undercover operation on any basis, whether or not they have any reason to believe that the person has or will engage in criminal conduct. Moreover, few statutes restrict the use of undercover techniques. Though some federal, state, or local regulations may limit the use of undercover techniques, [FN30] such regulations are not judicially enforced, at least by the United States Supreme Court. [FN31] Sometimes, however, courts have used the entrapment doctrine to limit the inducements undercover officers can offer targets to commit crimes. [FN32] Ultimately, however, entrapment law focuses on the defendant's predisposition to commit a crime, and not the *757 propriety of police deception. [FN33] Thus, while the entrapment defense directly limits police encouragement of criminal activity, at best it only indirectly limits privacy intrusions.

The protection of citizens' privacy against the actions of other citizens is multifaceted. The Fourth Amendment, of course, limits government, not private, activity; therefore, the Constitution does not restrict private parties' actions. [FN34] A cluster of common law causes of action protect various aspects of privacy. Four “privacy” causes of action have been recognized: intrusion into seclusion, disclosure of private facts, false-light privacy, and appropriation of likeness. [FN35] Only the intrusion cause of action has relevance for this article. Generally, a person commits the tort of intrusion if: 1) he “intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns,” and 2) the intrusion “would be highly offensive to a reasonable person.” [FN36] Secretly planting a listening device in a married couple's bedroom provides the classic example of such intrusive behavior. [FN37] The leading case of media liability under a common law intrusion theory, Dietemann v. Time, Inc., [FN38] involves the use of undercover techniques. In Dietemann, the Ninth Circuit concluded that the use of deception to enter a private house and record conversations with the occupant *758 gave rise to a common law cause of action for intrusion. [FN39] (Albeit the court, in upholding the intrusion claim, focused on the journalists' use of concealed recording equipment rather than upon their use of false pretenses to enter Dietemann's house.) [FN40]

More specific common law and statutory protections of privacy compliment the common law intrusion cause of action. The causes of action for trespass and breach of the duty of loyalty stand as the primary common law supplemental protections. Many intrusions into privacy will require physical entry onto another's property, and thus a cause of action for wrongfully entering property, i.e., trespass, serves both to deter and to provide some compensation for such intrusions. [FN41] Of course, the property owner's consent, either express or implied, may provide a defense to a trespass cause of action. [FN42] However, obtaining such consent generally requires the investigator to deceive the target as to his purposes or identity. The use of deception to gain a property-owner's consent ordinarily vitiates that consent. [FN43] Courts have held media defendants liable for trespass in the course of newsgathering. [FN44]

*759 At common law, employees owed their employer a duty of loyalty. That duty of loyalty included an obligation to keep confidential the employer's valuable trade secrets. [FN45] Thus, employers have long possessed a right to compensation for any damage resulting from an employees' disclosure of trade secrets. [FN46] The interests protected by such actions differ somewhat from the privacy interests discussed above. Disclosure of trade secrets does not really violate anyone's sensibilities-corporations lack such sensibilities. [FN47] The cause of action rests on an economic basis. [FN48] Trade secrets possess economic value and often require the investment of economic resources to develop. The absence of any protection for trade secrets would discourage companies from attempting to develop such trade secrets. [FN49]

News organizations often uncover corporate secrets by placing a hidden camera or recording device on a cooperating employee, or getting a journalist (complete with hidden camera or recording device) hired as an employee of the company. [FN50] The breach of loyalty cause of action *760 could potentially expose news organizations to liability for using this standard technique. Indeed, Food Lion pursued a breach of loyalty claim in its recent lawsuit against ABC. [FN51] Food Lion claimed a breach of loyalty in two respects. [FN52] First, Food Lion argued, the two PrimeTime Live producers who obtained jobs at Food Lion, Lynne Litt and Susan Barnett, breached their duty of loyalty to Food Lion by providing information to ABC. [FN53] The court concluded that the information Litt and Barnett provided was not the type of information protected by the breach of loyalty cause of action. [FN54] Second, Food Lion argued that Litt and Barnett had not performed their responsibilities for Food Lion as proficiently as they would have had they not also been attempting to gather information for a news story. [FN55] The Court held that the claim stated a valid cause of action, *761 but it led to little in the way of damages. [FN56] (A statutory claim based on North Carolina's unfair trade act provided another basis for Food Lion's claims. [FN57] The court viewed deception as an unfair trade practice. [FN58])

Various federal and state statutes also protect some aspects of privacy. [FN59] One statute that news organizations must frequently consider when planning undercover operations, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, [FN60] limits wiretapping. Private individuals cannot plant recording devices to intercept conversations. [FN61] A participant in a conversation may record it, unless he does so “for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” [FN62] The quoted proviso denies protection to participant monitoring only to the extent that it is used for criminal or tortious purposes, reflecting congressional concern that a broader proviso might hamper newsgathering. [FN63] The provision makes state laws regarding participant monitoring relevant, by prohibiting *762 such recording if it is “in violation” of state law. States have split on allowing participant recording-some allow it, others do not. [FN64] Law enforcement officials may engage in non-participant monitoring upon the issuance of a warrant after making a four-part showing, including establishing probable cause to believe the participants are engaging in unlawful activity. [FN65] Law enforcement use of consensual monitoring, monitoring in which one of the parties to the conversation has consented, remains unrestricted. [FN66]

III. Equal Treatment, Underenforced Norms, and Ex Ante Review

A. Privacy as an Equal Treatment Principle: “All Animals Are Equal, but Some Animals Are More Equal Than Others” [FN67]

1. Theory: All Animals Are Equal

The law of privacy, as a matter of both Fourth Amendment jurisprudence and tort law, exemplifies an equal treatment principle. [FN68] Every potential target of intrusion receives equal protection, absent a judicial or judicially-reviewable determination that individualized and specific cause to believe the person has violated the law exists. [FN69] Scholarly discussion *763 of the equal treatment principle in the Fourth Amendment context has focused primarily on this aspect of equality.

In addition, however, every alleged intruder into privacy possesses the same rights and responsibilities. Theoretically, every intruder, whether private person, law enforcement agent, or journalist, enjoys the same rights to intrude into the privacy of others. [FN70] With respect to law enforcement intrusions, the Fourth Amendment protects “reasonable expectation s of privacy.” [FN71] Those “reasonable expectations of privacy,” which limit law enforcement agents proceeding without a warrant or individualized suspicion, [FN72] are determined by reference to others' legal right to intrude upon the target. (This “equal treatment” approach is more traditionally characterized as an “assumption of the risk” approach because, in effect, a citizen who exposes something to “the public” assumes the risk that law enforcement officials will also have access to it.) [FN73]

For instance, the Supreme Court has addressed law enforcement use of aircraft to observe an enclosed area obscured at ground level by a fence or some equivalent obstruction. [FN74] The Court found unreasonable any subjective expectation of privacy by the owners of such property, largely because the same observations could be made by a private citizen in any passing aircraft. [FN75] Similarly, in deciding whether law enforcement officers can examine articles contained in opaque trash bags left at a curb for disposal, the Court has held unreasonable any expectation of privacy regarding the bags' contents, largely because private citizens can rummage through such trash bags. [FN76]

*764 Courts employ such reasoning even when a private party breaches the target's reasonable expectation of privacy. For instance, delivery companies will occasionally accidentally breach a sealed package, and thereupon examine its contents. Once this occurs, law enforcement officials may also examine the package's contents. [FN77]

Thus, people either have a reasonable expectation of privacy or they don't. If a person has a reasonable expectation of privacy, he has it against everyone. If a person lacks a reasonable expectation of privacy, he lacks it against everyone. [FN78] This approach has some logic, given that the existence or absence of a reasonable expectation of privacy determines whether a search has occurred at all. [FN79] In particular, how can an action qualify as a “search” if performed by one person, but not if performed by another? Moreover, such an approach does establish an equal treatment principle with respect to privacy-if a rationale is employed to allow one person to intrude upon another, the whole world can intrude. (To analogize to the concept of easements in property law, an “equal treatment” principle would essentially provide that a property-owner could not limit an easement over his property to a particular person. Thus, if there is an implied easement for the power company, there is an easement for the world.) As we shall see, rigorous application of such a doctrine may well enhance privacy because of the doctrine's effect on the political process. [FN80]

The constitutional and common law governing newsgathering also reflects an equal treatment principle. The constitutional limits on efforts to bar the press (and/or the general public) from governmental proceedings clearly reflects an equal treatment principle. With the exception of judicial proceedings, [FN81] the Supreme Court has refused to specify either the types of information citizens can obtain about government activity or *765 the governmental institutions to which the public must have access. [FN82] Indeed, some, like the late Justice Potter Stewart, view the Constitution's failure to resolve such questions as a strength of the document. [FN83] (Justice Stewart argued that the Constitution wisely enshrined a healthy competition between an institutional press seeking to obtain information and a government often seeking to withhold it.) [FN84] The Court instead has enforced an equal treatment principle-no member of the public is entitled to more or less access than anyone else. Thus, the media is entitled to whatever access the public enjoys, but no more. [FN85] In both Houchins v. KQED, Inc. [FN86] and Pell v. Procunier, [FN87] involving media claims of a right of access to penal institutions, the Court held that the press was entitled to no greater access than the general public. [FN88] Because, in both cases, the general public was banned from the correctional facility, the press could be excluded as well. [FN89] In these cases, the Supreme Court performs little *766 explicit balancing of competing interests. [FN90]

Moreover, balancing has proven problematic even where the Court finds an affirmative obligation to provide access to the press and the public. The Supreme Court has held that the government must provide access to court proceedings-courts cannot exclude those who wish to observe judicial proceedings, even if they wish to exclude all non-participants. [FN91] However, the Court seems to decide questions regarding the particular types of judicial proceedings that must remain open on a largely historical basis. [FN92] In particular, proceedings that have historically been open to the public must remain open, while those that have historically been closed can remain so. The other prong of the analysis used by the Court to determine whether proceedings should be open, namely “whether public access plays a significant positive role in the functioning of the particular process in question,” [FN93] does not distinguish proceedings that must be open from those that can be closed. [FN94] The largely historical approach to court access questions obviates the need for serious balancing- the Court simply refers to decisions about closure made in the past *767 rather than to decisions about closure made by contemporaries (which the equal treatment principle makes paramount).

The common law regarding claims of intrusion into seclusion also incorporates a very similar equal treatment approach. Thus, if a journalist obtains information about a person while the journalist is in a place open to the public, that person ordinarily cannot prevail on a privacy claim. [FN95] In effect, information available to the general public must also be available to the press. However, if the press is not in an area in which the general public is allowed, gathering information about a person can form the grounds of liability. [FN96] For example, a desire to gather news does not exempt the press from trespass laws. [FN97]

Thus, the courts have pegged both law enforcement's and the media's rights to those of the general public. [FN98] Transitivity suggests that law *768 enforcement and the media possess equal rights to intrude upon the “ privacy” of investigative targets. (If A = B and B = C, then A = C.) Both formally, and informally, courts have equated the rights of the media with those of law enforcement. [FN99] For example, in California v. Greenwood, [FN100] the Supreme Court prominently noted published reports of journalists rummaging through Henry Kissinger's curbside trash, in finding unreasonable any expectation of privacy in curbside trash. [FN101] The Court accordingly upheld a warrantless police search of opaque trash bags. [FN102] Thus, the intrusions made by journalists provided significant support for allowing the law enforcement intrusion. In another case, Judge Richard Posner, for a Seventh Circuit panel, explicitly equated the rights of law enforcement and journalists. [FN103] He argued that if FBI agents do not violate reasonable expectations of privacy when engaging in certain activity, journalists may engage in the same activity without being held liable for the common-law tort of intrusion. [FN104] (Others seem to use the same standards to judge media and law enforcement conduct.) [FN105]

The equal treatment approach has two advantages. First, it encourages the political processes to limit privacy intrusions. By subjecting intruders who are either viewed favorably or unlikely to interfere with the politically powerful to the same standards as intruders who are less favored and more likely to annoy the politically powerful, the equality principle enlists the political system to protect privacy. Those concerned about intrusions by the media or nosy neighbors will act through the political process to ensure that not only the media and busybodies have no *769 right to engage in particular intrusions, but also that law enforcement officers, who they have less reason to fear, cannot intrude. Thus, if the public does not consider privacy only in the context of law enforcement efforts to identify and apprehend criminals, but expands its consideration to citizens' intrusions upon each other (including press intrusions), that broader perspective may moderate the public's inclination to unduly disregard privacy in combating crime.

In addition, the equality principle allows the court to protect privacy without balancing privacy interests itself. Privacy issues raise knotty problems-courts cannot easily specify appropriate levels of privacy, and few judicially administrable standards can guide the courts. Indeed, privacy issues present an archetypal form of balancing inquiry. The Fourth Amendment, the constitutional provision that most explicitly addresses privacy, is one of the few Bill of Rights provisions that explicitly recognizes the need for balancing. [FN106] Other than specifying that searches and seizures should be “reasonable,” providing a mechanism for individualized determinations, and prohibiting general searches, [FN107] the Fourth Amendment does little to adumbrate the contours of privacy. Moreover, the public should participate in determining the proper balance between privacy interests and competing interests, such as preventing and punishing criminal activity, and ensuring disclosure of information citizens need to exercise autonomy (and protect themselves).

Rather than having to determine the reasonableness of a homeowner's expectation that others will not overfly his property to observe areas hidden at ground level, or rummage through curbside opaque trash *770 bags, courts need merely determine how others have resolved those questions for society, and then apply the limitation equally to all intruders. Courts need not independently balance the competing interests, because the general burdensomeness of the potential intrusions will lead the political branches of government to perform the difficult balancing of competing interests.

Two deficiencies in the equal treatment approach substantially undermine its advantages. First, the equality principle conflicts with our intuitions. Our intuitions suggest that privacy is a matter of degree; different levels of privacy are appropriate with respect to different people. As the poet John Donne observed: “No man is an island, entire of itself.” [FN108] I may well find it necessary or desirable to share information about some aspects of my life with family members, co-workers, my bank, or my telephone company. Nevertheless, my expectation that others would not have access to such information as a result is surely reasonable. [FN109] (Moreover, of course, the segmentation of confidences enhances privacy. Each person or entity that has privileged access to information about an individual has such access only to discrete sources of information. If, under an equal treatment principle, an entity could gain access to all or a large number of such sources of information, aggregation of the separate information would become possible, thus further diminishing the individual's privacy.) In effect, each person creates different circles of intimacy, with those in each circle entitled to expect a different level of intimacy. [FN110]

Trade secret law reflects this intuition. A company may divulge its trade secrets to some, yet retain the legal right to shield the information from the general public. [FN111] The company could recover damages for the *771 wrongful disclosure of the trade secret beyond the limited circle of authorized recipients of the information; therefore, a business can use information and divulge it to the people who need it, without undertaking extraordinary measures to prevent further disclosure. [FN112] If the law were otherwise, the business could keep the information confidential only by either forgoing the use of the information altogether or using it inefficiently (i.e., by not divulging it to the people who need it to further the company's interests).

The Supreme Court's failure to recognize different levels of intimacy on a consistent basis has meant that the law does not really protect privacy and that people can only ensure their privacy by self-help supplemented by luck. Just as importantly, for our purposes, the Court's failure to recognize different levels of privacy has undermined the equality principle in application. [FN113] Because the Supreme Court has failed to consider the special access that some people or institutions enjoy, the courts have equated the rights of police with the rights of those enjoying the most privileged access to information about a person. [FN114] The general public lacks such special access, and the Court has equated the press with the general public.

A second troubling aspect of the equal treatment principle arises from the context in which courts initially decide most privacy issues. Privacy issues almost invariably come before courts only when raised by a somewhat unsympathetic claimant, such as the guilty criminal defendant or the malefactor exposed by the media. Often, privacy claims arise in challenges to criminal convictions. [FN115] Given the exclusionary rule, courts *772 have significant incentives to find that no Fourth Amendment violation has occurred, so that a guilty party will not escape unpunished. [FN116] Even when the privacy issue first arises in a civil suit against a law enforcement officer brought by someone who has not been convicted (and who thus may garner more sympathy), [FN117] the criminal context of the issue is surely not far from the deciding judge's thoughts. As a result, judicial rulings may often be less solicitous toward privacy interests than they might otherwise have been had the same issues arisen in a more appealing context. For instance, the courts might have decided the question of whether a homeowner has a reasonable expectation of privacy in discarded trash differently if the issue had been presented in a case involving a common law “intrusion” claim brought against snoopers. [FN118] The question of whether placing a beeper on a person's car (or on something the person will carry in his car) to aid in following him might have been decided differently had the issue arisen in a case involving either a private*773 detective following a spouse suspected of infidelity, or a free lance photographer following a noted celebrity. [FN119]

2. Practice: But Some Animals Are More Equal Than Others

Despite the superficial equality among potential intruders into privacy, the correlation between the rights of law enforcement, the media, and the general public is not exact. First, the Supreme Court has refused to constrain law enforcement within the parameters of the privacy expectations recognized by the statutes and customs that limit private individuals' intrusions upon others' privacy. For example, even though a state may protect the privacy interest of those discarding their garbage by statutorily prohibiting private citizens from examining the contents of opaque trash bags left at curbside for disposal, under the Supreme Court's Fourth Amendment jurisprudence such a statute would not establish a reasonable *774 expectation of privacy that law enforcement officers must honor. [FN120] Similarly, if a state court has held that the disclosure of an individual's banking records without authorization tortiously breaches the depositor's reasonable expectations of privacy (and thus entitles the depositor to monetary compensation), [FN121] that judicially-recognized expectation of privacy does not create Fourth Amendment rights that law enforcement officers must respect. The Supreme Court determines reasonable expectations of privacy independent of any particular state or local law-and it has found unreasonable any expectation of privacy in banking records. [FN122] Thus, the Court discusses the reasonableness of particular expectations of privacy in the abstract without binding itself to any actual expectations embodied in statute or custom.

If the Court were seriously attempting to guarantee citizens at least the minimum level of privacy that the general public believes reasonable, the Court would enforce, as a matter of federal constitutional law, the privacy rights accorded by the law and custom of states and their political subdivisions. [FN123] Thus, the Court could hold that the judiciary should determine whether an intrusion constitutes a search by reference to laws and customs of general applicability, whether state or local. [FN124] (Such laws or customs would presumably establish the minimum Fourth Amendment protection, not the maximum. In other words, a court could find a reasonable expectation of privacy even if that expectation has not been recognized*775 in law or custom.) If law enforcement officers wish to intrude upon a person during the course of a criminal investigation in a manner that contravenes state statute or custom, they would need a warrant issued upon probable cause (or need to justify the intrusion under some exception to the Fourth Amendment's warrant and probable cause requirements). [FN125] Fifth Amendment procedural due process jurisprudence (interpreting the Fifth Amendment's Due Process Clause) reflects such an approach. [FN126] The property interests protected by the Due Process Clause are defined by state law, contract, and custom, rather than by Supreme Court decisions purporting to define the concept of property. [FN127]

*776 Second, the press and law enforcement receive different treatment. The press is equated with the general public; [FN128] law enforcement officials are equated with the most privileged member of the general public-they have “most favored nations” status. [FN129] Not all members of the public have the same access to information. A bank has more access to my financial records than do other private citizens (including journalists). Despite this unequal access, law enforcement officials have been placed on a par with banks, not everyone else. [FN130] Thus banks and law enforcement agencies can access the financial records of a depositor when no one else can. [FN131] The Supreme Court's media cases (at least those in which the press sought access to government institutions) did not involve situations in which members of the public have varying levels of access. [FN132] In deciding*777 those cases the Court assumed that all have essentially the same access- that is, the Court assumed that laws of general applicability governed access, and, on that basis, held that the press must comply with such laws. [FN133]

Judicial decisions regarding undercover operations reflect the conflict between judicial practice and the equal treatment theory. The courts exhibit greater disapproval of media undercover operations, despite the theoretical equality accorded the news media and law enforcement. Courts do not impose sanctions on law enforcement undercover operations; [FN134] they do impose sanctions on undercover journalists. In three prominent cases, Dietemann, [FN135] Food Lion, [FN136] and Copeland v. Hubbard Broadcasting, Inc., [FN137] courts have imposed liability upon the media for engaging in undercover deception. [FN138] None of the three cases would likely be accepted as good law today had law enforcement rather than the media made the challenged intrusions. The Supreme Court caselaw regarding undercover law enforcement operations, including On Lee v. United States, [FN139] Hoffa v. United States, [FN140] and United States v. White, [FN141] conflicts with Dietemann and Copeland. Under the reasoning of the On Lee-Hoffa-White trilogy, law enforcement agents can pretend to be customers, enter private houses (such as Dietemann's or Copeland's), and electronically record their interaction with the homeowner. [FN142] Indeed, in Dietemann, law enforcement officials had engaged in conduct resembling that of Time's journalists. [FN143] Food Lion surely could not have successfully defended itself against criminal charges or a civil penalty by pointing*778 to the deceptive undercover tactics used against it had ABC producers Lynne Litt and Susan Barnett been United States Department of Agriculture investigators rather than journalists. In large part, Food Lion proceeded on several business competition tort theories, [FN144] but the Supreme Court has already held that business competition law does not establish the scope of a business enterprises' Fourth Amendment rights. [FN145] That is, government agents can engage in activity that would expose private persons to civil liability, and yet not violate the Fourth Amendment. If the courts were following the equal treatment principle they have proclaimed, the Fourth Amendment cases refusing to limit law enforcement undercover operations would preclude imposing any limitation on media undercover operations. [FN146]

The contrasting media and law enforcement decisions suggest courts' unwillingness to subject police intrusions to the emerging standards governing media intrusions. This double-standard, in which police undercover operations receive particularly charitable treatment, should provoke concern. Government use of undercover techniques poses special dangers to privacy because of the absence of several practical restraints that limit the private use of such techniques. First, law enforcement officials have formal, or at least informal, immunity from criminal prosecution. Specifically, law enforcement officers may possess legal immunity from criminal liability for crimes committed in the course of an undercover operation. [FN147] Even if undercover agents lack formal immunity from *779 criminal liability, they enjoy virtual immunity as a practical matter, given their close alliance with the prosecutors who would bring any criminal prosecutions. Thus, no FBI agent or informant faced prosecution for attempting to bribe members of Congress as a part of the ABSCAM investigation. If journalists had attempted to conduct such an operation, they might well have found themselves criminally prosecuted for attempted bribery (although perhaps they could have proven that they lacked the requisite intent). [FN148]

Second, law enforcement officials conducting undercover operations will more likely secure the cooperation of third parties upon whom more elaborate undercover operations depend. Law enforcement can protect active criminals from prosecution if they agree to become government informants, and apparently sometimes does so. [FN149] Even non-criminals may be more willing to cooperate with law enforcement than with media. [FN150]

Third, the physical danger [FN151] and expense [FN152] of undercover operations are less likely to deter law enforcement agencies, at least on the federal level. [FN153]

*780 Journalists generally conduct relatively simple undercover operations. Even the more complex media undercover investigations, like the Chicago Sun Times' Mirage Bar investigation [FN154] or CBS's bookie joint investigation [FN155] are less complex than some government undercover operations. For instance, presumably no news organization would have conducted an operation like ABSCAM, in which informants offered bribes to members of Congress, or Operation Greylord, involving investigation of judicial bribery. [FN156] Can a departure from an equality principle that privileges law enforcement be justified? It can, and that justification points the way to an approach that enlists the political process to limit privacy intrusions.

I shall begin the discussion by examining several possible justifications that will prove deficient. The first such “justification” might more accurately be described as a doctrinal explanation. In particular, sovereign immunity may explain the apparently discrepant treatment of journalists and law enforcement officers. A second, more legal realist explanation of the difference in treatment might focus upon the differing judicial attitudes toward the missions of law enforcement and the media. Perhaps this explanation can also serve as a normative justification-the differing missions may justify different treatment. [FN157] A third potential explanation focuses on the differences in the dissemination of information by law enforcement and the media. Perhaps the more limited dissemination of information by law enforcement justifies departing from the equal treatment principle. As demonstrated below, none of these theories provide a satisfactory explanation. The Supreme Court itself suggested an *781 appropriate justification for the distinction in Branzburg v. Hayes : [FN158] the difference in public control over law enforcement as opposed to the media. Emphasis upon such a distinction follows from theories advocating attention to the ways in which the political branches of government can preserve constitutional values, such as privacy, that the courts cannot or will not fully protect.

a. Sovereign Immunity

Perhaps sovereign immunity explains the disparate judicial treatment of law enforcement and the media. Sovereign immunity's impact can be appreciated by examining the types of claims brought and the types of relief sought in suits against law enforcement and the media. The suits against journalists and law enforcement officers raise distinct claims. The claims against law enforcement rest upon the Fourth Amendment. The suits against journalists invoke common law causes of action. The scope of privacy protection offered by the Fourth Amendment need not coincide with that offered by common law causes of action-the common law can safeguard a broader range of privacy interests than the Fourth Amendment protects. Indeed, the Supreme Court has interpreted the Fourth Amendment to provide less protection than the common law. The Fourth Amendment does not incorporate all standards of privacy relevant to common law causes of action. [FN159] Thus, law enforcement officers may engage in acts that do not violate the Fourth Amendment, yet violate common law rights that would make them amenable to damages actions (but for sovereign immunity). Common law claims, substantively sound against both law enforcement and journalists, cannot succeed against law enforcement officials solely because of sovereign immunity. In effect, citizens can establish a violation of common law rights by law enforcement, but lack a remedy.

*782 The type of relief sought in cases involving media and law enforcement also demonstrates the significance of sovereign immunity. Ordinarily, when litigants challenge government undercover operations as an invasion of privacy, they seek to suppress evidence of criminal conduct. Litigants who have pursued intrusion claims against journalists (such as claims for intrusion into seclusion, trespass, breach of a duty of loyalty, or violation of a statutory duty) have generally sought monetary damages, rather than the suppression of evidence. The media and law enforcement cases could be reconciled by the following principle: an invasion of privacy by deception (as a part of an undercover operation) does not justify the suppression of evidence establishing criminality, [FN160] but merely allows the aggrieved party to sue for damages unrelated to his criminal conduct. Thus, the criminal defendant whose privacy law enforcement has wrongfully invaded during the course of an investigation cannot prevent use of the resulting incriminating evidence or obtain damages based on the harm he suffers from trial or conviction, but could merely recover damages for the indignity that a reasonable person (or a reasonable person with all his idiosyncracies, save his criminal proclivities) would suffer from such an invasion of privacy. Such plaintiffs would lack a remedy against law enforcement officers, but not because of substantive privacy law regarding the expectations of privacy recognized as reasonable; they would lack a remedy because of the bar of sovereign immunity. Many political jurisdictions retain their sovereign immunity to such intentional tort claims. The federal government, for instance, has not waived its immunity to such intentional tort claims; only claims for assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution can form the basis of a tort claim against the federal government for the acts of its law enforcement agents. [FN161] Federal law bars common-law tort claims against government employees as individuals. [FN162] Similarly, the press can publish information derived from an undercover operation (the equivalent of allowing law enforcement to use evidence at trial). [FN163] However, the aggrieved party can obtain damages for *783 the indignity of having its privacy invaded (or the diminution of enjoyment of land because of a trespass or the harm it suffers from having placed confidence in a disloyal employee). [FN164] Such actions can succeed because sovereign immunity does not protect the press. In short, sovereign immunity, not a more favorable judicial attitude toward law enforcement undercover operations, shields the government from liability for using deceptive undercover tactics.

Thus, perhaps the courts actually disapprove of law enforcement undercover operations to the same extent that they disapprove of similar operations by journalists, but simply cannot provide a proper remedy for law enforcement officers' common law torts given sovereign immunity. Symmetry exists after all, except for sovereign immunity-which does not relate to standards of conduct. Ultimately, however, the theory does not adequately explain the difference between cases involving journalists and law enforcement officers.

First, in two hypothetical situations in which sovereign immunity does not bar the target of a law enforcement undercover operation from seeking relief, the judiciary would probably withhold relief nevertheless. Suppose a company learns that one of its employees is an undercover government agent seeking incriminating evidence against it, but cannot identify the employee. If the company sought a court order enjoining the government's undercover operation, the court would surely deny relief even though sovereign immunity would pose no obstacle to the action. [FN165] Similarly, suppose a private individual cooperated with the government by providing confidential information about his employer to aid a law enforcement investigation. The employee probably cannot invoke sovereign*784 immunity. [FN166] Surely a court would not allow the company to collect damages against the employee for breaching a duty of loyalty.

Second, the U.S. Supreme Court has indicated its approval of undercover techniques (a position certainly inconsistent with a frustrated judicial desire to punish the use of such techniques). Indeed, at times, the Court has excused law enforcement from certain obligations so as to accommodate undercover operations. In Sorrells v. United States, [FN167] the Court held that defendants should not prevail on an entrapment defense merely by proving that the government had used deceit in the course of its investigation. [FN168] The Court explained that only undercover investigation could uncover certain types of crimes. [FN169] In Branzburg v. Hayes, [FN170] the Court implicitly approved of law enforcement agents' refusal to produce government informers before grand juries so as not to divulge the informers' true identities, [FN171] despite grand juries' rights to every person's evidence. [FN172] In Weatherford v. Bursey, [FN173] the Court held that an undercover agent's presence at a meeting between a criminal defendant and his criminal defense lawyer did not deprive the criminal defendant of the right to effective assistance of counsel, because the agent could maintain his cover only by attending the meeting. [FN174] The Court disapproved the prophylactic rule announced by the lower court (barring undercover *785 agents from attending meetings between criminal defendants and their lawyers), explaining that the lower court failed to give sufficient weight to the “unfortunate necessity of undercover work and the value it often has to effective law enforcement.” [FN175] No per se rule was appropriate when the cost of such a rule might be “for all practical purposes” to “unmask” undercover agents. [FN176] Sorrells, Branzburg, and Weatherford suggest that the courts approve of undercover techniques. [FN177] They certainly do not suggest that the courts refuse to punish the use of undercover techniques, as an invasion of privacy, merely because they lack any remedy to vindicate such privacy rights.

In short, the Supreme Court has not held that law enforcement's use of undercover techniques violates reasonable expectations of privacy, but merely warrants the award of damages (assuming sovereign immunity were not a bar), not the exclusion of any evidence obtained as a result. Even in the absence of sovereign immunity, courts probably would not have awarded damages to the defendants in On Lee, White, or Hoffa, if such common-law claims had been brought, and the Supreme Court, in deciding those cases, surely did not envision those defendants asserting civil claims for invasion of privacy, trespass, or breach of loyalty.

b. Differing Missions

Arguably, courts should tolerate law enforcement intrusions more readily than media intrusions because identifying and punishing criminals is more important than informing the public-in other words, law enforcement's mission should take precedence over the press's. [FN178] Thus, the key distinction between press and law enforcement undercover operations is the difference in their missions, not, as I will later suggest, the difference in the types of public control over the respective institutions. For *786 example, courts might show less solicitude toward government use of undercover techniques when government agencies employ such techniques to protect the government's proprietary interests. [FN179] Courts might entertain more serious reservations about approving the use of undercover techniques to identify inefficient or untrustworthy employees than to uncover violations of criminal law. If so, because government, whether pursuing law enforcement or its own proprietary interests, is subject to popular control, only the heightened valuation of the government's mission, not the existence of greater control, could justify the favoring of law enforcement over the press.

Perhaps, concomitantly, the courts distrust journalists' motives. Courts may sense that media undertake undercover operations to titillate more than to inform. [FN180] Watching the results of undercover operations, hidden camera footage of people who are unaware they are being watched, can be very entertaining. [FN181] Indeed, hidden camera stories have rescued PrimeTime Live (the television news magazine for which Litt and Barnett worked) from oblivion. [FN182] The media's interests tend to extend *787 beyond any legitimate need to inform the public-the excessive (and indeed obsessive) coverage of the O.J. Simpson trial and the life of Princess Diana, and, in the undercover context, one tabloid's interest in Frank Gifford's fidelity, seem to demonstrate a desire to titillate. Indeed, many see a growing convergence between news and entertainment. [FN183]

Perhaps the reasonableness of an expectation of privacy should turn on the intruder's purposes. [FN184] The balancing implicit in the Fourth Amendment, and in many of the common-law protections of privacy, [FN185] provides a sound basis for such an approach. [FN186] Intrusion to protect others from serious injury, either by punishing a wrongdoer or by informing potential victims of the danger posed by the wrongdoer, certainly merits more solicitude than simple voyeurism or a desire for vengeance (both of which can be satisfied by spying). Similarly, an intrusion to prevent death or serious injury might be justified, when one to prevent some more minor harm might not. Society should find some intrusions acceptable, on balance, for some purposes, but not for others.

On this theory, law enforcement may appear to fully deserve a privileged position. Effective enforcement of the laws serves a crucial societal *788 function. [FN187] Moreover, the Constitution implicitly recognizes law enforcement (and thus, implicitly, its mission). [FN188] However, free speech and a free press play central roles in “maintaining a free society” [FN189] and were explicitly accorded a prime place in the Constitution, namely in the First Amendment. [FN190] The people's role as sovereigns on whose behalf government officials act would be undermined without guarantees of free speech and a free press. [FN191] As James Madison observed, “ a popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.” [FN192] Moreover, the organized press serve an institutional role in government, captured by Vincent Blasi's concept of the “checking value” of speech. [FN193] The press operates as a nongovernmental institution that is empowered to observe government activities and to report to a populace who lacks the time to *789 observe government activities for itself. [FN194] Free speech also enables individual autonomy. [FN195] Free speech, and the media's ability to undertake undercover investigations, may provide information people must know to make fully-informed choices about the goods and services they purchase. News organizations direct much of their undercover efforts toward providing the public with such information. Indeed, ABC's Food Lion investigation represents one such effort to preserve consumer sovereignty. In short, the vital role of speech makes important not only the dissemination of speech, but the acquisition of information as well. [FN196]

Thus, valuing law enforcement intrusions more highly than media intrusions on the basis of the respective institutions' missions is at least somewhat problematic. [FN197] In addition, the above distinction between punishing criminals and informing the public has a somewhat artificial quality. Punishment and publicity provide complementary protections to the public. Some administrative agencies employ both techniques to achieve their statutory mandates. [FN198] Increasingly, courts use publicity as an alternative for or a supplement to incarceration. [FN199] Legislatures have acted similarly. [FN200] The Megan's Laws recently enacted around the country provide a supplement to incarceration, and rest upon a theory that parents have a right to make informed decisions about the dangers their children face from child molesters. [FN201] *790 Moreover, the Founding Fathers established procedures to fully satisfy law enforcement's need to apprehend and punish-in the Fourth Amendment they accorded law enforcement special powers to invade privacy. The government, and only the government, can intrude if it satisfies the Fourth Amendment's warrant requirement or acts upon individualized suspicion. Supreme Court precedent has not been kind to the principle that law enforcement's needs are satisfied by the warrant process and the ability to proceed upon individualized suspicion. The exceptions to the Fourth Amendment's warrant and probable cause requirements abound, and some indeed can probably be justified only by the societal interest in ensuring that law enforcement can succeed in solving crimes, apprehending criminals, and securing their convictions. In other words, some exceptions rest on the Court's judgment that the warrant process and the requirement of individualized suspicion do not sufficiently advance law enforcement's mission.

Nevertheless, the Court has committed itself, at least in theory, to maintaining the warrant and individualized suspicion requirements with respect to intrusions undertaken for purely law enforcement purposes, and primarily relaxes those requirements when intrusions justified at least in part by non-law-enforcement purposes are at issue. Thus, the Court has distinguished searches serving law enforcement purposes from searches serving other governmental purposes, such as maintaining order in correctional institutions, supervising governmental employees, or securing compliance with administrative regulations. For instance, in cases involving the brief detention and search of cars near the nation's borders, the Supreme Court has noted a constitutionally significant distinction between searches for law enforcement purposes and searches to ensure compliance with regulations governing the use of highways. [FN202] Searches for the latter purposes are not constrained by the warrant and probable cause requirements; searches for the former are. Similarly, in allowing government agencies to examine the contents of government employees' desks, the Court carefully distinguished government employer's interests in discovering misconduct that threatens workplace efficiency from law enforcement's interest in uncovering illegal conduct, and, on that basis, held the warrant clause inapplicable to workplace searches. [FN203] Many exceptions*791 to the requirements that government officials obtain warrants and act only on individualized suspicion, such as the inventory search or administrative search doctrines, permit searches that are not conducted solely to detect criminal activity. [FN204] The above distinction between intrusions for law enforcement and non-law-enforcement purposes suggests that the importance of enforcing the law ordinarily does not justify jettisoning the warrant and individualized suspicion requirements, Thus, the importance of solving crimes and apprehending criminals does not justify exempting from the Fourth Amendment's warrant and reasonable suspicion requirements law enforcement undercover operations that invade generally-applicable “reasonable expectations of privacy” that restrain all other citizens. [FN205] In short, the difference in law enforcement's and the media's respective missions does not justify refusing to limit law enforcement undercover operations while limiting the media's undercover operations.

c. Dissemination of Information

Perhaps the distinction between the police and the media reflects a concern about the dissemination of information-the media will more likely publicize private matters unrelated to serious crime than will law enforcement officials. [FN206] However, treating the press less favorably because*792 it will exercise its First Amendment right to publish information undermines that right. [FN207]

In slightly different contexts, the Supreme Court has upheld official limitations upon the dissemination of information gained only because the prospective speaker has privileged access. Thus, the Supreme Court relied, in part, upon the special, privileged access criminal defense counsel enjoy as trial participants in upholding special restrictions on criminal defense counsel's out-of-court statements regarding matters in litigation. [FN208] In Seattle Times Co. v. Rhinehart, [FN209] the Court held that a judge could prohibit a newspaper from publishing information it had obtained in civil discovery as a defendant in a lawsuit. [FN210] The Court explained that the judge could impose such a constraint because only the newspaper's special access as a civil litigant enabled its discovery of the information. [FN211] In Snepp v. United States, [FN212] the Court allowed the CIA to enforce a prior restraint on a former employee who wished to write a book, again noting that special access can justify a concomitant limitation on dissemination. [FN213] Other courts have found a relationship between special access and limitations on the right to publish information. The Illinois Supreme Court has upheld a ban on publishing the names of juvenile victims when the press has been given special access to the juvenile proceedings. [FN214] Similarly, a Georgia court has allowed law enforcement agencies to condition the grant of special access to a journalist upon the journalist's agreement to keep confidential certain information obtained as a result. [FN215]

*793 If, however, a particular investigative technique does not violate a reasonable expectation of privacy, courts should not preclude journalists from utilizing such a technique because they intend to exercise their First Amendment rights to publicize the information obtained as a result. The use of undercover techniques and other methods discussed above do not, in the Supreme Court's view, violate any reasonable expectations of privacy. Thus, the difference in dissemination cannot justify the different attitudes toward law enforcement and press use of undercover techniques, or some of the other intrusive techniques discussed previously.

In short, if courts conclude that undercover techniques do not invade reasonable expectations of privacy, and thus that private citizens can use such methods, treating law enforcement more favorably than the press based on the harm from dissemination of information is unwarranted and inconsistent with the First Amendment.

Having criticized several possible justifications for greater judicial solicitude toward law enforcement undercover operations, I will turn to the argument that the popular “control” of law enforcement and the lack thereof over media provides a firm foundation for treating law enforcement and media undercover operations differently.

B. Privacy as an Underenforced Norm

1. The Underprotection of Privacy

a. General Privacy Intrusions

Perhaps because the Founding Fathers did not predict the amazing advance of technology, their vision of privacy focused on physical space, and, consequently, they largely sought to prevent physical intrusion. [FN216] The Supreme Court, to a large extent, has adhered to that limited conception of privacy. Thus, the Court's view of citizens' “reasonable” expectations*794 of privacy remains much more limited than the general public's. [FN217] A survey published in 1993 suggests that the general public considers very intrusive several activities the Supreme Court categorizes as non-searches unworthy of constitutional limitation. [FN218] For instance, the public considers the examination of bank records and the use of undercover techniques (such as planting an informant as a person's secretary or chauffeur) quite intrusive, yet the Supreme Court has held that such activities breach no reasonable expectation of privacy. [FN219] The congressional reaction to some of the Court's Fourth Amendment rulings evidences the Supreme Court's failure to extend privacy protections in a manner consistent with the general public's conception of the appropriate level of privacy. On several occasions, Congress, in the wake of Supreme Court decisions, has expanded citizens' privacy rights by enacting statutes “overturning” (at least in part) those decisions. [FN220] When the Court held *795 that police examination of banking records did not qualify as a “search” subject to Fourth Amendment limitations, [FN221] Congress enacted the Right to Financial Privacy Act, [FN222] extending some privacy protection to such records. When the Court held that telephone records did not come within Fourth Amendment protections, and thus that the police could freely use pen registers and trap and trace devices (which reveal the telephone numbers called from a particular phone and the number of the phones from which calls to a particular phone originated), Congress enacted the Electronic Communications Privacy Act of 1986, [FN223] limiting the use of such devices. Even the Federal Communications Commission, an administrative agency, has shown more solicitude toward privacy than have the courts. [FN224]

Not only has the Court failed to establish “reasonable expectations of privacy” that, at a minimum, protect the expectations of privacy the general public believes reasonable-it has not even seriously attempted to do so. As noted above, the Court decides the reasonableness of expectations of privacy with a seemingly curious disinterest in legislative determinations*796 set forth in statutes or ordinances recognizing the reasonableness of certain expectations of privacy. [FN225] In short, the Supreme Court does not even purport to protect the privacy expectations of the general populace, even when those expectations have gained recognition in state law.

b. Undercover Operations

The Supreme Court's jurisprudence regarding undercover operations also reflects the underprotection of privacy. The Court allows law enforcement to use deception to establish an intimate relationship with a person in order to gain access to and permanently record his most private intimacies, even when law enforcement agents cannot constitutionally intrude upon his privacy openly. By such rulings, the Court has created troubling legal anomalies and undermined some of its constitutional decisions. If the Constitution prohibits police from compelling an individual to provide incriminating statements, why should the police have the power to plant an agent to obtain those same incriminating admissions by deception? [FN226] Surely, having a law enforcement agent work in a person's business, serve as his chauffeur, care for his children, and live in his house is more intrusive than compelling him to answer questions in court. [FN227] To take another example, there is some inconsistency in prohibiting*797 an agent from placing a bug to hear my conversations, but allowing that agent to befriend me and, as a result, participate in and record my conversations. [FN228]

Indeed, the use of such undercover techniques is harder to reconcile with the Fourth Amendment than many actions that the police can take only upon the issuance of a warrant, because use of such techniques more closely resembles a general search (a search not directed toward finding a particular item). [FN229] The framers of the Fourth Amendment expressed special concerns about general searches. [FN230]

Moreover, undercover operations permanently damage interpersonal relationships. After such operations, the subject of the undercover operation (who may be found entirely innocent) could quite possibly become suspicious of all relationships- including relationships with the trustworthy. [FN231] Investigations that do not use deceptive tactics produce no such consequences. Private relationships, such as those disrupted by undercover*798 operations, are important, as courts have recognized, and should enjoy some protection from government disruption. [FN232]

However, the difficulty of articulating judicially administrable standards governing undercover operations makes placing constitutional limits on such operations problematic. [FN233] Courts cannot easily specify appropriate levels of privacy. [FN234] Deciding acceptable expectations of privacy *799 represents the archetypal balancing inquiry. Indeed, the political processes have a legitimate role to play in establishing such rights. Accommodating privacy to both advances in technology and changes in society should be subject to some public debate. [FN235]

The courts have adopted an alternative to balancing privacy interests against society's needs, namely, the equal treatment principle described above (albeit that principle is often breached). [FN236] Thus, in the Fourth Amendment cases, as well as the common law “intrusion” cases, [FN237] the courts perform little explicit balancing of competing considerations for and against privacy. Rather, the analysis focuses on whether non-governmental actors have access. Police officers can hover over fenced-in property in a helicopter to observe areas obscured at ground level, because aircraft regularly fly over such areas. [FN238] Law enforcement officers can search curbside opaque trash bags because “ i t is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.” [FN239] Many have commented on the Court's refusal to consider whether harm to the individual from intrusion outweighs society's needs, and noted that the Court instead relies on an equal treatment approach (described by many scholars as the assumption of the risk *800 approach). [FN240]

The Court has employed a similar approach in the First Amendment right of access cases. In general, the Supreme Court has refused to decide which government proceedings or public institutions must be open to the public, explaining that “ [t]here is no discernible basis for a constitutional duty to disclose, or for standards governing disclosure of or access to information.” [FN241] Instead, as indicated above, the Court has employed an equal treatment approach. [FN242]

In the undercover context, this equal treatment principle has meant that courts provide no independent constraint on the use of deception to obtain information. The Fourth Amendment does not restrict police use of undercover techniques, in part because everyone-private persons and media-can act as “false friends.” [FN243] Thus, the courts impose no restrictions upon law enforcement use of undercover methods. [FN244] Any limitation on deception must be imposed by the political branches of government.

2. Underenforced Norms Theory

As shown above, courts have difficulty establishing judicially administrable rules to protect privacy from governmental (or non-governmental) intrusion, particularly when the threat comes from the use of undercover techniques. Courts have faced similar difficulties in establishing principled standards to vindicate other constitutional rights. Institutional considerations preclude courts from fully enforcing a number of constitutional values. For instance, the Supreme Court has found itself unable to craft a doctrine to protect the values underlying the Equal Protection*801 Clause when “suspect classifications” or “fundamental rights” are not at issue. [FN245] The Court has also failed to develop principled limits on congressional delegation of legislative authority to agencies so as to ensure that Congress makes important legislative decisions. [FN246] In both of these areas, as well as others, the Courts cannot specify a judicially administrable standard without unduly intruding into the prerogatives of the political branches of government. Constitutional principles whose contours the Court does not fully develop for institutional reasons have been termed “underenforced constitutional norms.” [FN247]

Courts can preserve such underenforced norms by encouraging the political branches of government to protect them. Two classic approaches for doing so are: 1) requiring that decisions implicating such values be made by highly-placed, and thus politically-accountable, officials, [FN248] and 2) requiring government officials to encroach upon the rights of all citizens equally. The first approach relies on the public (or a substantial segment of it) having a level of interest in protecting the norm sufficient to ensure that elected officials will consider the norm, and seek to safeguard it to the extent possible, when they act. The second approach seeks to ensure that a substantial and politically-powerful segment of the public has a stake in minimizing incursion into constitutional values. *802 a. Decision by Politically-Accountable Decision-Makers

Hampton v. Mow Sung Wong [FN249] exemplifies the first underenforced norms approach. A group of resident aliens challenged a Civil Service Commission regulation barring noncitizens from federal government employment, asserting that the regulation violated the Equal Protection and Due Process Clauses. [FN250] The Court acknowledged “the political character” of the control over immigration and naturalization, [FN251] and noted the correspondingly quite limited judicial review of the federal government's control over aliens. [FN252] The Court also acknowledged that the Civil Service Commission had “identified several interests which the Congress or the President might deem sufficient to justify the exclusion of noncitizens from... federal employment .” [FN253] These interests included both providing the President with a “bargaining chip” in negotiating treaties and encouraging aliens to become citizens. [FN254] The Court nevertheless found that the Civil Service Commission regulation deprived aliens of due process. [FN255] The Court reasoned that only Congress or the President could invoke the interests justifying such an exclusion from employment-and that neither had considered the issue. [FN256] Moreover, the Civil Service Commission's responsibilities did not encompass the type of foreign policy and naturalization policy interests that could justify such a limitation on employment. [FN257] The Court concluded:

Since these residents were admitted as a result of decisions made by the Congress and the President,... due process requires that the decision to impose th [e] deprivation of an important liberty [interest in potential federal employment] be made either at a comparable level of government or, if... made by the Civil Service Commission, that it be justified by reasons which are properly the concern of that agency. [FN258] Thus, in an area in which equal protection and due process principles often go underenforced [FN259] because the issues involve “political questions”*803 dedicated to other branches of government, the Court encouraged adherence to those principles by requiring Congress and the President to explicitly consider the wisdom of contravening those principles. [FN260]

The use of “clear statement” rules sometimes reflects a similar approach. [FN261] Clear statement rules provide that no statute will be interpreted to infringe upon a right unless the statute does so expressly. [FN262] Thus, courts will not view a statute as waiving a state's sovereign immunity or restricting the state's proprietary activities absent a clear statement that the statute is intended to do so. [FN263] The Supreme Court has had difficulty establishing a principled boundary between the functions of the national and state governments, lurching between constraining congressional power and removing those restraints. [FN264] However, the Court at least *804 makes Congress address the issue expressly, rather than allowing unelected Executive Branch officials to make such determinations. [FN265] Similarly, the Court has encountered enormous difficulty in drawing principled lines bounding Congress' power to enact retroactive civil statutes, [FN266] even though retroactive lawmaking undermines individual interests implicated by the Constitution. [FN267] The Court has therefore required Congress to expressly address the retroactivity issue rather than leaving the issue for resolution by unelected officials, whether administrators or judges, seeking to infer Congress' intentions. [FN268]

In at least one Fourth Amendment context, the United States Supreme Court has explicitly highlighted the importance of decisionmaking by “politically accountable officials.” [FN269] In upholding the use of sobriety checkpoints against a Fourth Amendment challenge, the Court noted that politically-accountable officials should have the power to select one of several “reasonable alternative law enforcement techniques” available to address “a serious public danger.” [FN270] The Court criticized the state appellate court for second-guessing law enforcement officials' evaluation of *805 the effectiveness of the program those officials had implemented. [FN271]

Scholars have suggested that requiring high-level officials to make law enforcement decisions can enhance the protection of citizens' liberty interests. [FN272] Many have argued that police should engage in more rulemaking, in part because rulemaking enables politically-accountable officials, rather than the politically-unaccountable officer on the beat, to set policy. [FN273]

Lawrence W. Sherman has advanced a proposal to establish accountability for undercover operations through rulemaking. [FN274] He argues that law enforcement agencies should use the rulemaking process to select the groups subject to undercover investigation and to establish enforcement priorities. [FN275] Thus, the agency would have to announce its intention to use undercover techniques and seek public comment. [FN276] The rulemaking requirement ensures that agencies would “be held accountable for” any decision to employ deceptive techniques. [FN277]

*806 However, when majorities lack sensitivity to constitutional norms, because, for example, lawbreakers and miscreants generally invoke those norms, decision by high-ranking officials may not provide sufficient protection. The issues surrounding the use of undercover techniques may present this danger. First, in the undercover context privacy norms are usually invoked by lawbreakers and miscreants. (If an undercover investigation reveals no wrongdoer, the targets might never learn of the investigation.) Second, the burden of undercover techniques may fall differently on various racial and ethnic groups. Issues of race and ethnicity have historically received heightened constitutional scrutiny, due in part to skepticism that majoritarian processes can secure equality for racial and ethnic minorities. [FN278]

Conflicting claims about whether racial and ethnic minorities receive equal treatment underlay many law enforcement issues-from deadly force policies, to traffic stop practices, to control of police brutality, to manpower allocation decisions. [FN279] Many argue that the police have been used by a dominant White society to control Blacks and other racial minorities. [FN280] And indeed, some evidence suggests that laws are enforced differently against Whites and Blacks. For instance, the percentage of Blacks among those fatally shot by police greatly exceeds the percentage of Blacks in the population. [FN281] Some have offered explanations for this disparity, other than the obvious one: that police officers fire at Blacks when they would not fire at Whites. [FN282] Nevertheless, the disproportion does give rise to skepticism about whether Blacks are being treated equally. Similarly, Black motorists and pedestrians endure a disproportionate*807 number of investigatory stops. [FN283] For instance, between January 1995 and September 1996, 72.9% of the motorists stopped and searched on a stretch of I-95 north of Baltimore for violating traffic laws were Black, while only 19.7 were White, even though a survey conducted in the same area noted that 74.7 percent of traffic law violators were White, while only 17.5% were Black. [FN284]

Even if the disproportionate effects of law enforcement upon minority groups do not reflect racism, those disproportion- ate effects nevertheless undermine the political protection of privacy. If, for whatever reason, be it racism or higher crime rates among minorities, a grossly disproportionate number of adversarial situations between citizens and law enforcement involve minorities, non-minorities will likely suffer intrusion less frequently than do members of minorities. [FN285] As a result, non-minority citizens will likely be far less concerned about such intrusions than minority citizens.

*808 Not surprisingly, given the above, minorities and Whites tend to have disparate attitudes toward the police. [FN286] Not only are proportionately more minority citizens skeptical of police and the legitimacy of their actions, many minority citizens view the police as a hostile force opposed to their interests. [FN287] While the use of undercover operations has not been a major concern of those attacking the disproportionate impact of police practices upon minorities, minorities are convicted, in disproportionate numbers, of at least one type of crime that police frequently employ undercover techniques to investigate, i.e., narcotics offenses. [FN288]

A third problem undermines reliance on high-level, politically-accountable decisionmakers to act with sensitivity to the privacy implications of undercover techniques: those officials can make decisions regarding undercover operations inconspicuously and thus escape political accountability. If elected officials can secretly influence the direction of undercover operations, for example, the temptation to use such influence to remain in power may prove too strong. [FN289] As one scholar has noted: “Intelligence served as a means of repressing dissent and neutralizing potential threats to powerholders long before the emergence of the modern state. And history, ancient and modern, has also made us familiar with *809 the repressive role of clandestine surveillance practices....” [FN290] Those who defeated incumbent mayors in large cities often discovered the incumbents' secret use of undercover techniques against political rivals. [FN291] Officeholders' temptation to secretly use undercover techniques against political opponents also led to the infiltration of the Civil Rights Movement, the Anti-War (Vietnam) Movement, and various radical organizations. [FN292]

While the “accountable official” approach has been deployed to protect some constitutional interests (including Fourth Amendment privacy interests threatened by the use of sobriety checkpoints), and has its advocates among scholars, by itself the approach may well not adequately restrain the use of undercover techniques.

b. Equal Treatment

Courts can employ a second means of encouraging political protection of underenforced norms-requiring the political branches to treat everyone equally, so that everyone faces equal limitations on their liberty. [FN293] In the context of intrusions into privacy, the political branches of *810 government would have to subject everyone to an equal risk of intrusion. The cases involving roadblocks and administrative searches reflect this approach. The Supreme Court has held in both contexts that the relevant government agency must conduct such searches according to a plan that leaves little discretion in selecting the targets of inspection. [FN294] The political reaction to the use of undercover techniques suggests the salutary power of requiring everyone to undergo intrusion on an equal basis. Law enforcement use of undercover techniques became more controversial when such techniques were no longer employed only against drug dealers, prostitutes, and political dissidents, and began to be employed to investigate “white-collar” crimes and public corruption as well. [FN295]

Of course, courts may confront some difficulty in mandating equality in the use of undercover techniques, because different crimes predominate among different groups. Undercover investigations targeting solicitation of prostitution, narcotics violations, and the sale of stolen *811 goods probably intrude disproportionately upon poorer people who lack political influence. Undercover operations directed at official corruption or corporate crime will more likely ensnare the wealthy and politically powerful. [FN296] Courts lack a judicially administrable standard to properly allocate investigative resources between types of crimes, and any judicial effort to reallocate investigative resources would severely encroach upon the prerogatives of the political branches of government. [FN297]

c. Scholarly and Judicial Use of the Underenforced Norms Approach

Several scholars have urged courts to protect privacy interests by combining the two approaches discussed above (i.e., requiring a visible decision by politically-accountable officials and requiring equality of treatment), rather than promulgating substantive rules through adjudication. Anthony Amsterdam, in two path-breaking articles, suggested that the courts abandon the effort to establish substantive Fourth Amendment standards. [FN298] The courts should, instead, encourage law enforcement to promulgate standards for limiting privacy intrusions. [FN299] The courts could treat police searches particularly favorably if the police department conducting the search has adopted regulations governing the conduct of that type of search and conducted the search in conformity with those regulations. [FN300] Thus, in cases where significant Fourth Amendment concerns exist, the courts could uphold a search conducted pursuant to a police department policy when they would overturn an identical search conducted in violation of police policy, or, more importantly, conducted by a police department that lacked applicable regulations. (The Supreme Court employs a similar approach to encourage law enforcement officers to seek warrants.) [FN301] The courts would, of course, review the police policies for general consistency with Fourth Amendment principles.

*812 Judge Carl McGowan has proposed an approach resembling Amsterdam's, as have others. [FN302] Most advocates of police rulemaking, however, do not discuss the control of the discretion exercised in planning and conducting undercover investigations. They focus on constraining police discretion in other settings. For example, several advocates have focused on rulemaking's potential to constrain the discretion inherent in arrest decisions, i.e., decisions regarding whether particular criminal conduct warrants arrest (as opposed to some alternative form of sanction or remedial treatment). [FN303]

Courts have not used the above techniques to enlist the aid of the political branches of government in constraining undercover investigation. Likewise, courts have not required involvement of “politically-accountable officials” in the decision to initiate undercover operations. [FN304] The Supreme Court does not require law enforcement agencies to promulgate rules governing the use of undercover techniques-rules that would serve to reduce or eliminate the exercise of discretion in the selection of targets and the conduct of undercover operations.

The Supreme Court has recognized, however, that “ [r]egulations governing the conduct of criminal investigations are generally considered desirable, and may well provide more valuable protection to the public at large than the deterrence flowing from the occasional exclusion of items of evidence in criminal trials.” [FN305] In the context of a claim that courts should enforce Internal Revenue Service regulations that require prior high-level authorization before an Internal Revenue Agent can tape record*813 a conversation with a taxpayer, the Court refused to invoke the exclusionary rule to penalize violation of the regulation because doing so might discourage the promulgation of regulations (which the Executive Branch can enforce). [FN306] Thus, while the Court does not require regulations (or some form of preexisting guidelines, as it does in the roadblock cases), [FN307] it purports to encourage promulgation of regulations by giving the Executive Branch the exclusive power to punish violations of such regulations. [FN308]

3. Non-Judicial Review of Police Undercover Operations

At least nominally, politically accountable officials control law enforcement agencies on the federal, state, and local level. On the federal level, the President appoints, and the Senate must confirm, high-level law enforcement officials. Even after their appointment, executive branch officials remain subject to some congressional control, [FN309] and most high- level law enforcement officials serve at the President's pleasure. [FN310] Both *814 high-level Justice Department officials, [FN311] who are indirectly subject to electoral accountability, and members of Congress [FN312] review many federal undercover operations. (However, the level of congressional scrutiny has declined since the early to mid-1980's-Congression- al interest during that period can be attributed to ABSCAM.) Local police forces also come under political control. The heads of some local law enforcement agencies, like sheriffs, are directly accountable to the people, [FN313] while others are indirectly accountable through elected officials. [FN314] Moreover, local prosecutors, almost all of whom are elected, [FN315] sometimes limit police conduct. [FN316] Other elected officials seldom supervise local police undercover operations in any formal or systematic manner. [FN317] However, local elected officials could establish a system for periodic review of their police department's undercover policies and operations. [FN318]

Ultimately, the level of nominal political control holds less importance than the effectiveness of political controls in allowing the citizenry to influence law enforcement policies. Certainly agencies have a lesser democratic pedigree than legislative bodies. [FN319] Moreover, agency decisions will often possess less salience for the general public than legislative decisions. Reliance on an underenforced norms approach and political branch sensitivity to constitutional concerns will not protect constitutional values if governmental officials' decisions lack such salience.

Many police decisions may hold substantial salience, because such decisions involve the use of force and potential injury and death. Local *815 police policies governing use of deadly force and high-speed pursuits, for example, have sparked significant political controversy that has produced some change in law enforcement policies. [FN320] Undercover operations, however, typically do not place the target in physical danger, and unlike the use of deadly force and the establishment of sobriety checkpoints, the use of undercover techniques is not particularly visible. [FN321] Indeed, many who have been the target of undercover operations may never even know they have been targeted.

If policies regarding undercover operations have little salience on the local level, they have even less salience nationally. While police *816 abuses may cause great concern in a local community, such abuses rarely become key issues on a state or national level. Indeed, the need to thwart criminal activity (by enhancing police authority if necessary) has been considered a more critical issue since at least the 1968 Presidential election.

The political branches of local governments may exercise little control over local law enforcement undercover operations for yet another reason. By tradition, many local police departments have been accorded almost complete autonomy by the elected officials to whom they nominally report. [FN322] This tradition of independence developed in response to the corruption and favoritism exhibited by local police departments in earlier eras. [FN323] Accordingly, elected officials have long exhibited reluctance to exercise control over local police. [FN324] Thus, many police departments are even less amenable to popular control than other executive agencies.

Whatever the reason, local communities have exerted little political control over undercover operations. [FN325] A relatively recent study, conducted by Henry Hamilton and John Ortiz Smykla, suggests that an overwhelming majority of big city police departments have adopted guidelines regarding undercover operations. [FN326] Of 87 police departments that acknowledged employing undercover techniques, sixty-four (or 74%) reported establishing guidelines governing the use of undercover techniques. [FN327] However, the reasons the departments cited for establishing guidelines do not suggest that public or political pressure played a major role in their decision to do so, although for some of the departments in *817 the study such considerations may have assumed significance. [FN328] Moreover, more than half of the departments had established purely “procedural” guidelines-addressing issues like recruitment of undercover officers, the chain of command, equipment to be used, procedures for filing reports, safety precautions and instructions on handling money. [FN329] Fewer than half had promulgated “authorizational” guidelines, which establish standards and procedures for determining whether particular circumstances warrant the use of undercover techniques. [FN330] This last finding is the most troubling, because only authorizational guidelines protect privacy interests.

4. Underenforced Norms and the Media

While underenforced norms techniques have some potential with respect to law enforcement, they have none with respect to the news media. Courts cannot enlist the political branches of government to constrain the media, because media organizations possess substantial constitutional immunity from public accountability. [FN331] Government officials*818 cannot supervise media organizations in the manner that they can supervise law enforcement authorities. The Supreme Court, indeed, relied on this distinction in Branzburg v. Hayes, [FN332] in explaining its unwillingness to afford journalists' sources the same protections from judicial processes that it had afforded government informants. [FN333] In Branzburg, a journalist, who had been held in contempt for refusing to identify a confidential source before a grand jury, argued that he could shield his informant's identity because law enforcement officials can protect their informants by refusing to disclose their identities to grand juries. [FN334] Justice White, writing for the Court, noted that according journalists such protection would establish a “private system of informers operated by the press.” [FN335] In contrast, Justice White continued, the decision to retain or relinquish the anonymity of government informants lies “in public, not private, hands.” [FN336]

*819 The media, however, does not possess complete immunity from public control of its news gathering activities. While such “control” cannot be exercised by administrative supervision, it can be exerted by enacting generally-applicable rules specifying a particular range of privacy. For instance, a state could presumably prohibit everyone from examining the contents of opaque trash bags left at a curb for disposal. If it did so, the media would have no legal right to search the content of such trash bags, and journalists could be sanctioned (civilly or criminally) for doing so. [FN337]

In short, an underenforced norms approach can provide some protection against government encroachments upon privacy by encouraging the political branches of government to supervise law enforcement. Protecting privacy from media encroachments can be accomplished only with the less flexible approach of establishing generally applicable categorical rules.

C. Privacy and Ex Ante Determinations

We have seen that while law enforcement and the press theoretically have equal rights to intrude, in practice they do not. We have also seen that the discrepant judicial treatment of law enforcement and the press can be justified by the difference in the types of public control over the respective entities: flexible standards can be used to constrain law enforcement agencies, while only rules of general applicability constrain the press. We will now explore a closely related difference in control over law enforcement agencies and the press-a difference in the timing of review. Law enforcement intrusions can be reviewed ex ante, i.e., before the intrusion takes place. Media intrusions must be reviewed ex post, i.e., after the intrusion takes place.

The Fourth Amendment's warrant “requirement,” to the extent it survives, [FN338] provides for an ex ante determina- tion of the Government's power to conduct a search. When the warrant “requirement” applies, law enforcement officials must justify intruding upon a citizen's reasonable expectations of privacy before the intrusion occurs. The Supreme Court has expressed (though not always exhibited) a preference for searches conducted pursuant to warrants issued by “‘neutral and detached’“ magistrates. [FN339] Thus, the Supreme Court has said, “in a doubtful or marginal *820 case a search under a warrant may be sustainable where without one it would fall.” [FN340] The “ neutral and detached” magistrate protects privacy. While law enforcement officers' evaluation of the need for intrusion will likely reflect “ends justifies the means” logic, the magistrate's evaluation is less likely to do so. Moreover, the magistrate will probably decide such issues with a broader perspective than police officers take-giving appropriate weight to non-law-enforcement interests. [FN341] (Indeed, for this reason, shortly after ABSCAM a House Subcommittee suggested that judicial officers, rather than high-level Justice Department officials, make any relevant threshold determinations regarding the propriety of conducting undercover operations.) [FN342]

Even when the Supreme Court has categorized certain intrusive activities as non-searches, Congress has at times established some ex ante review by the judiciary, or at least a high-level public official, when it concludes that the conduct raises privacy concerns. [FN343] For instance, the Right to Financial Privacy Act of 1978 protects banking records by subjecting efforts to obtain such documents to ex ante judicial review. The Act bars government agencies from obtaining customer records maintained by financial institutions unless: 1) the customer authorizes the disclosure, 2) the government authority obtains an administrative subpoena, an administrative summons, a search warrant, or a judicial subpoena, or 3) the government authority makes a formal written request to the financial institution. [FN344] (The statute imposes stringent requirements on customer authorizations, ensuring that the authorization clearly rests upon a knowing and intelligent waiver of rights.) [FN345]

The government agency must give the depositor notice before presenting any summons, subpoena, or request to the bank for compliance, and the depositor then has ten days to seek an order quashing any such summons, subpoena, or request. [FN346] A court must grant the depositor's*821 motion to quash if “there is not both a demonstrable reason to believe that the law enforcement inquiry is legitimate and a reasonable belief that the records sought are relevant to that inquiry.” [FN347]

The statute also allows the government to obtain a search warrant pursuant to the Federal Rules of Criminal Procedure, which requires a showing of probable cause. [FN348] Moreover, within ninety days of obtaining the warrant the government agency must notify the customer that it has obtained his financial records, unless the government can prove that “there is reason to believe” that giving notice will produce one of five specified harms. [FN349]

The statute also restricts the use and further dissemination of such records. [FN350] An agency cannot transfer such records to other agencies unless it certifies that the records “are relevant to a legitimate law enforcement inquiry within the jurisdiction of the receiving agency or department,” and that it has notified the relevant customer of its intent to transfer the records. [FN351] Thus, before the government can obtain financial records, either the customer must consent to the disclosure (or at least fail to avail himself of the right to seek a judicial determination of his rights) or the government agency must convince a judicial officer of the records' relevance to a legitimate law enforcement inquiry. [FN352]

The Public Health Service has, by regulation, established a similar approach with respect to the use of undercover agents in alcohol and narcotics treatment programs. The Public Health Service allows law enforcement officers to engage in such undercover operations only to investigate wrongdoing by Public Health Service employees or agents, not the patients themselves. [FN353] The Public Health Service concluded that banning undercover investigation targeting their patients would provide essential *822 protection for the therapeutic relationship. [FN354] Even undercover investigation of employees requires a court order (which may be entered only after the Program Director receives notice). A court may enter such an order only if it finds that: 1) there is reason to believe that an employee is engaged in criminal activity, 2) other investigatory methods are either unavailable or ineffective, and 3) the need to place an undercover agent in the program outweighs the potential damage to patients, physician-patient relationships, and “the treatment services.” [FN355] The order must, inter alia, limit the undercover placement to six months and requires the law enforcement agency to maintain the confidentiality of any patient-identifying information gained as a result of the operation, except to the extent necessary to prosecute employees. [FN356]

Some have proposed using this ex ante approach to control undercover law enforcement activity-by requiring law enforcement officials to obtain either a warrant issued by a judicial officer or the approval of some accountable high-level public official. [FN357] For instance, in 1984, the House Subcommittee on Civil and Constitutional Rights recommended that Congress limit federal undercover operations by establishing a warrant requirement analogous to that covering wiretapping. [FN358] The Subcommittee recommended an enumeration of the crimes that law enforcement could use undercover techniques to investigate and the types of operations permitted. [FN359] An application for judicial authorization of an undercover operation would have had to specify the basis for obtaining authorization, including the details of the particular offense being investigated and, if possible, the identity of the target. [FN360] The Subcommittee suggested either a “probable cause” or “reasonable suspicion” standard for the required government showings. [FN361] (In other words, before a law enforcement*823 officer could offer a target any inducement to engage in illegal activity, the officer would have had to first satisfy the court that there was probable cause to believe, or reasonable suspicion that, the individual had engaged in, was engaging in, or would soon engage in criminal activity.) Under the Subcommittee's proposal, the government agency would also have had to demonstrate that conventional overt investigative techniques had proved or would probably prove unsuccessful, or that reliance on such overt techniques would endanger lives or property. [FN362] Moreover, before a request for a warrant could be made, designated high-level FBI and Justice Department officials would have had to approve of the undercover operation. [FN363]

Like law enforcement, the media may act overzealously. In pursuing news stories, journalists may myopically intrude upon others without taking a sober view of privacy concerns raised by their intrusion. The task of “ferreting out” news often involves almost as much competition between the press and their subjects as that inherent in the law enforcement/criminal relationship. In addition, media organizations compete with each other. [FN364] Judicial officials would, of course, provide a more neutral and detached evaluation of the propriety of using intrusive investigatory means to obtain a story and could ensure that “ends justifies the means” logic does not color the decision to intrude.

However, adopting a warrant approach to control media use of undercover techniques would raise troubling issues. [FN365] Subjecting the press to ex ante judicial review of undercover operations would constitute a sort of prior restraint. Technically, such a system would not contravene the “prior restraint” doctrine [FN366] because the doctrine applies only to publication,*824 not acquisition, of information. [FN367] However, dissemination of news cannot be assured without according some protection to newsgathering. [FN368] In particular, the press could not report certain information if it were prohibited from engaging in the investigatory activities needed to discover that information. Clearly, as the Court has recognized in the law enforcement context, undercover techniques may furnish an essential means to uncover otherwise undiscoverable information. Often, such information warrants publication, so that citizens can participate in government or exercise their own autonomy. Moreover, requiring journalists to seek approval from government officials before deciding when to use undercover techniques injects government officials too deeply into the process of newsgathering.

*825 In addition, ex ante review would require courts to define the legitimate scope of press inquiry. In ex ante review systems governing law enforcement, the reviewing court must always determine the legitimate scope of the investigation. [FN369] In the law enforcement context, the courts have little difficulty doing so because law enforcement may investigate only criminal conduct. (In addition, many law enforcement agencies have jurisdiction to pursue only limited types of crimes.) Specifying the appropriate scope of a media investigation presents a more difficult challenge-in essence a court must determine whether a journalist seeks newsworthy information. When pursuing such inquiries in other contexts, the courts have not successfully defined the sphere of legitimate media interest without either intruding into the function of editors or according the media almost limitless discretion. [FN370]

Thus, any judicial controls on the media's use of investigatory techniques (other than rules of general applicability) must be imposed ex post. That is, courts could exercise such control only by adjudicating journalists' civil liability for conduct already undertaken.

IV. Controlling the Use of Undercover Operations by Law Enforcement and the Media

We have now seen that control of media undercover investigations and control of law enforcement undercover investigations pose different challenges, and that those differences may justify departure from the principle that all privacy intruders should enjoy equal rights. We will now explore some potential strategies for restraining law enforcement and media undercover operations. With regard to law enforcement, greater public supervision by public officials and the courts, rather than substantive judicial determinations, should be employed. With regard to the media, an approach that does not rely upon supervision by public officials is required.

*826 A. Law Enforcement

Underenforced norms theory suggests an approach to law enforcement undercover operations. The Supreme Court's “hands off” approach, supplemented by lower courts' occasional invocation of the entrapment doctrine, has proven insufficient. Undercover operations should require the approval of high-level, politically-accountable officials. Such officials would authorize the operation ex ante, before it is undertaken, upon a record setting forth the law enforcement officer's justification for employing undercover techniques. For undercover operations not based on individualized suspicion, courts should insist that the government agency adopt a plan for the use of undercover techniques that makes all citizens equally subject to targeting. Moreover, the use of undercover techniques should be publicly debated in advance. Finally, the undercover operations that reveal no criminal conduct should be publicized, just as law enforcement currently publicizes the operations that do reveal criminal conduct. [FN371]

These recommendations might nevertheless seem insufficient, for the reasons stated previously-invocations of rights primarily by miscreants, racial discrimination, the autonomy of local police forces, and the potential lack of salience of undercover issues. Ex ante judicial review (which would either supplement or supplant high-level law enforcement review) could ameliorate these problems.

*827 B. The News Media

As shown above, courts need not act alone in protecting privacy against intrusion by law enforcement officers-we have seen the potential, albeit not fully realized and perhaps not fully realizable, for public supervision of law enforcement that would allow particularized balancing of societal needs and individual privacy on a case-by-case basis. That option is not available with respect to the press-an underenforced norms approach will not succeed because the press need not answer to the political branches of government, or even the populace. An ex ante approach is unavailable for the same reasons. How then can courts approach the task of protecting privacy against media encroachment, while recognizing the press's special need to use intrusive undercover techniques?

Several approaches for resolving this quandary merit exploration-however, not surprisingly, none will prove completely satisfactory. The courts could: 1) impose absolute liability (thus allowing potential liability to determine when the press will employ undercover techniques while compensating the targets of those techniques), 2) pursue an ex post reasonableness approach (in which a court, ruling after the undercover operation has taken place, imposes liability if it finds the journalist's intrusion unreasonable), or 3) establish rules of general applicability to protect privacy from press and public intrusion.

Under the first approach, the courts could award damages for the media's invasion of a person's privacy by means of deception, regardless of the media's justification for the intrusion. In other words, the courts could impose absolute liability upon journalists who use deceit to uncover information that their targets seek to shield. When journalists have reason to believe that employing deception will uncover newsworthy information, they will conduct the undercover operation and pay any resulting damage award. Where the press has little or no reason to believe that something newsworthy is being secreted, they will eschew undercover techniques. In such situations, the expected cost of the damages for which the journalist would become liable would outweigh the expected benefits from employing undercover techniques. In theory then, absolute liability deters deception when there is little reason to believe that newsworthy information is being hidden, while individuals receive compensation for enduring invasions of privacy that are in society's interest (because the benefits provided by the intrusion outweigh the harm it does). In effect, the cost of an undercover investigation upon privacy would cease to be an externality, and would be internalized by media defendants. Frederick Schauer has suggested a similar approach with respect to *828 defamation. [FN372] The classic Vincent v. Lake Erie Transportation Co. case, [FN373] involving the nonconsensual use of a private pier during a storm on the grounds of private necessity, reflects the same approach. [FN374]

This approach suffers from several problems. First, the First Amendment may bar the imposition of absolute liability. The absolute liability approach seems somewhat inconsistent with the First Amendment's spirit. In particular, the approach may require imposition of liability upon a journalist even though the journalist acted appropriately. We want the journalist to use deception if the value of the information to the public outweighs the indignity suffered by the target; nevertheless, the journalist would remain liable even in such circumstances. Moreover, imposing absolute liability may clash with Supreme Court doctrine protecting the press from liability without fault for defamation. [FN375] More specifically, the Supreme Court has rejected liability without fault-holding that at a minimum defamation plaintiffs must show negligence. [FN376] However, the defamation caselaw arguably does not present a problem for two reasons. First, defamation involves news dissemination, not newsgathering; intrusive newsgathering techniques receive less protection than harmful publications, even defamatory ones. Second, the press can harm reputation unintentionally, by negligent conduct. Press intrusion by means of trespass and deception are intentional (or at least done with knowledge of the infringement of the target's interest). While imposing absolute liability for unintended harms might appear troubling, particularly in an area of First Amendment concern, imposing such liability for intentional (even if not malicious) infringement of an interest seems less of a threat to freedom of the press. Nevertheless, imposition of absolute liability would probably be found impermissible.

Second, quantifying the harm arising from an invasion of privacy, i.e., deciding the appropriate amount of compensa- tion, would present difficult problems. As an intangible harm, loss of privacy is particularly difficult to quantify. Most of the losses will be non-pecuniary, and such damages have proven notoriously difficult to calculate. [FN377] For example, *829 how does one quantify the injury from the unwanted videotaping of a sexual liaison by a sexual partner? How does one measure the indignity of having one's babysitter act as a spy? How does one calculate Food Lion's loss of privacy, or that of the employees who worked with Litt and Barnett? Certainty and precision in damages calculations would be elusive with juries deciding questions of damages. Yet, certainty would be essential if the news media is to properly decide when to engage in undercover operations. [FN378]

Moreover, damage awards might turn on information not known to the news organization at the time it decided to undertake the undercover operation (again frustrating news organizations' efforts to engage in cost-benefit analysis). For example, surely the degree of injury, i.e., the plaintiff's level of offense, would depend in part upon the plaintiff's personality. Media organizations would not be privy to all information relevant to such an inquiry when they acted. Thus, the jury's cost-benefit analysis would vary from that of journalists. The problem could be alleviated by limiting the information used to calculate damages to information that journalists knew (or should have known) at the time of their intrusion. However, if damages are thus limited, the target of the operation might not obtain full compensation for the harm suffered as a result of the media's intrusion.

Perhaps the practical effect of such an approach can be evaluated by applying it to the Food Lion case and to the Frank Gifford scenario. Under an absolute liability approach, ABC would be liable to Food Lion for the injury caused by its use of undercover techniques. Thus, a court would assess damages against ABC for any harm to sensibilities as a result of the ABC producers' working for Food Lion. The damages would presumably be very limited, given that corporations do not have sensibilities that invasions of privacy can offend. If ABC had revealed valuable trade secrets, or if Barnett and Litt's performance had harmed the company, by decreasing productivity or causing Food Lion to sell substandard meat, such losses would also be compensable. However, any damage award should not include injuries resulting from the truthful revelations about Food Lion's practices. Consumers should know how the meat they purchase is being handled-such information is clearly newsworthy and clearly would not give rise to a common-law claim of publication*830 of private facts. Despite any damages award, ABC would probably conduct similar undercover operations in the future, at least when it has some minimal prospect of discovering inadequate handling of meat-the limited damages would not counterbalance the prospects of obtaining newsworthy information. Nevertheless, Food Lion's minimal privacy interest would have been recognized by the award of damages.

An absolute liability standard would make journalists more reluctant to intrude upon the privacy of individuals, who have more substantial privacy concerns. Thus, in the Frank Gifford scenario, involving the videotaping of a sexual liaison, courts would award substantial damages for such an intrusion under an absolute liability approach-an award that would at least compensate the target for the invasion of his privacy. If the Gifford story were significant enough, the news organization would resolve to pay any liability, and pursue its undercover investigation nevertheless. The Florida Star may have conducted its undercover operation against Frank Gifford even had it known it would have to pay substantial damages for its intrusion: perhaps its profits from publishing such a story would outweigh a potential damage award. If so, the absolute liability approach would seem to produce a troubling result-surely the desire of one tabloid's readers for titillation should not lead to a severe intrusion that produces information most of us would view as having dubious legitimate interest. Journalists might well intrude upon privacy in highly offensive ways. Compensating the victims does not furnish an adequate solution. Presumably, the target prefers his privacy to monetary compensation, and monetary compensation does not restore the plaintiff's rights. Indeed, many critics of defamation law focus upon its excessive reliance on damage awards to address injuries to reputation. [FN379] An ex post reasonableness approach, the second of three potential approaches noted previously, merits consideration. The courts could afford media defendants a reasonable suspicion defense against “intrusion,” trespass, or breach of a duty of loyalty claims. That is, courts could exculpate media defendants who establish a reasonable suspicion that their targets were engaged in wrongdoing. However, adopting such an approach may nevertheless force the court to intrude upon editorial *831 discretion. [FN380] Judges would in effect decide for editors the stories that merit pursuit and the investigative techniques potential stories warrant. Even if judges rarely censured editorial decisions (in deciding damages claims), the very inquiry into editorial discretion might harm the editorial process. The more editors find themselves subject to judicial second- guessing, the more timid they will become, and the more they will proceed with an eye toward gaining the approval of non- journalist judges. Admittedly, the Supreme Court rejected an analogous argument in Herbert v. Lando. [FN381] In Herbert, CBS argued that inquiry into its editorial processes, by means of civil discovery requests, would “chill” the editorial process, and that, accordingly, courts must prohibit even defamation plaintiffs from using discovery to learn the details of the editorial process that resulted in the particular defamatory story. Though the Court dismissed the argument, [FN382] it may have done so in part because it saw no alternative to allowing plaintiffs to obtain probative evidence that could assist them in carrying their already heavy burden of proof in defamation cases. [FN383]

Courts could address the problem of judicial intrusion into the editorial process in the course of adjudicating claims to a reasonable suspicion defense-they could modify the reasonable suspicion test so that news organizations need merely follow either their own rules [FN384] or generally-accepted standards of journalism. [FN385] Many news organizations have *832 adopted ethics codes, [FN386] and many of those codes address the use of deception. [FN387] Some organizations prohibit the use of deception to obtain a story. [FN388] Others allow such deception only in rare circumstance, after the reporter has consulted supervisors. [FN389] Ultimately, requiring individual media organizations to adhere to whatever ethics codes they adopt may add little to privacy protection. It may not even solve the problem of intrusion into the editorial process, because virtually any provision regarding the use of undercover techniques, except an absolute prohibition, will incorporate standards that call for highly-subjective judgment calls.

General media codes could be used to evaluate the behavior of news organizations and individual journalists. Some general media ethics codes address the use of deception. [FN390] For instance, the Society of Professional Journalists' (“SPJ”) Code of Ethics counsels reporters to “ a void undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public.” [FN391] The SPJ Code of Ethics also notes that “ u se of such methods should be explained as part of the story.” [FN392] The Public Radio News Directors Code of Ethics calls for avoiding “making false representations to obtain materials from those who might otherwise object to discussing matters with reporters and other news employees ,” and further specifies that the journalist should “ i nform news sources when conversations are being taped.” [FN393]

However, the basis for authorizing a group of media organizations to establish the standards of behavior for the remainder of the journalistic community is not clear (although some states measure a media defendant's conduct against the standards of the journalistic community when determining whether the media defendant acted negligently in publishing *833 a defamatory statement). [FN394] Indeed, the news media's own efforts to create a national news council or otherwise enforce media ethics has foundered on this concern. [FN395] Moreover, while such media standard-setters would probably have some sensitivity to the public, they would lack accountability nevertheless. [FN396]

ABC probably could have prevailed on a reasonable suspicion defense, had one been available in Food Lion. The union representing Food Lion's employees, as well as many individual workers, had apprised ABC of Food Lion's unsanitary practices, [FN397] and such practices clearly qualified as a matter of public interest. Such reports surely provided ABC with “reasonable suspicion” to believe that Food Lion was engaging in unsanitary practices. There appear to be no allegations that ABC failed to follow its own standards. Thus, under such an approach, ABC should not have been held liable, even if Food Lion had in fact not engaged in unsanitary practices. The Frank Gifford scenario presents more difficult questions. It is not clear whether the Florida Star had any particular reason to question Gifford's marital fidelity. Moreover, even if it did, a court could quite properly conclude that the Star 's interest in uncovering such information did not warrant its intrusive conduct. The third potential approach noted at the beginning of this section may offer the most palatable strategy for restraining media undercover operations. Courts could regulate media undercover operations by establishing general rules that both proscribe certain behavior and permit other behavior. Thus, for instance, courts could allow journalists to pose as members of the general public, customers, or employees, but bar them from impersonating professionals and befriending individuals as part of a plan to deceive. Thus, media representatives could not use deception to appear to establish attorney-client, priest- penitent, doctor-patient, or accountant-client*834 relationships. [FN398] Nor could a journalist become an employee in an intimate setting, such as becoming a person's babysitter or chauffeur. The permitted deceptive techniques could be employed without rendering the journalist liable to damage claims by the targeted individual.

Often the media employs undercover techniques against targets who wish to know when they are dealing with a journalist because the target wishes to deceive the general public. If a dishonest auto mechanic knows he is dealing with a journalist, he will behave differently than he will if he is dealing with many of his customers. A particular member of the general public would not widely disseminate information showing the person's dishonesty or might lack the means to establish the person's dishonesty. The potential target particularly fears the media because he seeks to deceive the general public, and the press, in particular, threatens the success of that endeavor. The media should face no greater restriction in interacting with targets than the general public.

Unfortunately, this approach will prohibit some undercover investigations and prevent the discovery of important newsworthy information, even where the benefit to the public outweighs any indignity suffered by the recipient.

Under this third approach, Food Lion seems wrong for two reasons. First, the ABC producers did not use deception to become intimate employees. News organizations should have the power to become non-intimate employees-the needs of the public outweigh such privacy interests. However, perhaps this presents a close question on which others can disagree.

The more serious problem in Food Lion is that the court may not have been enforcing a standard of general applicability. The non-deception principle that the court purports to establish may not apply to any person or entity outside of the buyer-seller or competitor-competitor relationship, except perhaps to news organizations. While the North Carolina unfair trade statute may be generally applicable to business dealings with customers or relationships between potential or actual competitors, surely the statute does not prohibit all deception outside that context. If a private detective agency hires someone to have an affair with another to test their fidelity, surely the statute will not be construed to impose liability in such a situation. Similarly, if a researcher for a university or *835 other research institution fails to state the full nature of an experiment because it would ruin the results of the experiment, it is not at all clear that the non-deception principle would make the university or research institution liable for damages. Finally, if a fair housing organization sends out testers to determine whether racial steering is occurring, it is unlikely that the statute would prevent such deception. Moreover, the North Carolina court has already held that the statute does not apply to employer-employee disputes. [FN399] In short, it is not clear that the statute bars deception outside the buyer-seller or competitor-competitor relationship, with the exception of news organizations conducting undercover sting operations. Thus, potentially, the media could be subjected to higher standards than other business organizations.

Under the third approach, the Frank Gifford case is easy. Courts should clearly establish a rule of general applicability precluding individuals from engaging in deception to establish intimate sexual relationships.

V. Conclusion

Technology has changed our lives. It has made some things possible and others much more convenient. As Justice Brandeis warned seventy years ago in his famous Olmstead dissent, technology has had implications for privacy, rendering inadequate the property-based privacy analysis that dominates judicial thinking. [FN400] Technology's impact on privacy has created challenges with respect to a large number of possible intruders. We are not only subject to intrusion by law enforcement officers, but also by journalists, private investigators, and others, for almost every conceivable purpose. The problems raised by the tension between technology and privacy arise in several areas that we view as distinct areas of legal study-on the one hand criminal procedure and criminal law, and on the other tort law and media law. Not surprisingly, then, the problems arising in these distinct areas rarely receive rigorous comparative analysis. Thus, with respect to the problems arising from the use of undercover techniques, augmented by miniature audio and video recording devices, most scholars discuss the issue in terms of criminal procedure and substantive criminal law, and some discuss*836 the issue with respect to the news media and common law tort causes of action. Few compare the treatment of law enforcement and news media undercover investigations.

The Supreme Court's approach to the Fourth Amendment gives great importance to an “interdisciplinary” view. The Court has adopted an equal treatment approach (more commonly described as an assumption of the risk approach) in which it purports to determine citizens' “reasonable” expectations of privacy against all possible intruders, be they law enforcement, media representatives, or others. Perhaps because the Court addresses such privacy issues almost exclusively in the context of convicted criminals seeking to invoke the exclusionary rule to overturn their convictions, this equal treatment approach has led the Supreme Court to seriously underestimate the level of privacy that the public accepts as reasonable. The Court's misstatement of the value the public places upon privacy is demonstrated both by the statutes and customs the Court has ignored in deciding Fourth Amendment claims, and the statutes and regulations that have been promulgated partially “reversing” some of the Court's rulings. With respect to undercover operations, the equal treatment approach has led to judicial abdication; the Court does not recognize the privacy implications of undercover techniques. In part, too, such judicial abdication perhaps results from institutional concerns; creating a judicially-enforceable standard becomes extremely difficult once one concedes the necessity of undercover techniques.

Perhaps the Court's denigration of privacy has not been disastrous because of the protections that can be afforded constitutional values such as privacy by the political branches of government. This demonstrates a lesson we sometimes forget-the political system can protect constitutional values in some circumstances even when the courts cannot or will not. [FN401] Moreover, the courts can use underenforced norms techniques that it deploys in other constitutional areas to encourage the political branches of government to protect privacy. Elected representatives in national, state, and local legislative bodies can subject government agents who would use undercover techniques to privacy-enhancing controls, so that the use of such techniques reflects a somewhat even-handed consideration of the effect such operations have upon privacy. Such bodies can require that law enforcement officers act only after a societal decision has been reached that the particular law enforcement goal being pursued is *837 worth the injury to the social fabric produced by undercover operations, subject such law enforcement efforts to ex ante judicial review, reduce discretion in the selection of targets, and ensure that the failures as well as the successes of undercover investigation attain visibility. Even with all this, however, in the realm of the use of undercover techniques, we should not be sanguine that proper control over use of such techniques will be attained.

The Supreme Court's overall equality approach founders when dealing with the press. The press is an anomalous institution. “It” is private, yet serves a special function in democracy, both giving “the people” the information they need to govern themselves and serving as a watchdog. [FN402] Indeed, our most cherished image of the press is the fearless reporter who uncovers matters we would prefer not to see or think about. [FN403] All of this makes an underenforced norms approach impossible with respect to the press. Nor can we depend on journalists to restrain themselves when their actions threaten privacy interests. Thus, both the equality principle, crafted in the Fourth Amendment context to govern claims of privacy against law enforcement officials, but having consequences with respect to protection of privacy against all intruders, and the undervaluation of privacy lead to risks we cannot rely on the political branches to combat.

[FNa1]. Associate Professor, Rutgers Law School (Newark). I thank William Bratton, Daniel A. Farber, Marc A. Franklin, Douglas N. Husak, James Gray Pope, Ronald K. Noble, and George Thomas for their helpful comments on earlier versions of this article. Any errors in this article, of course, remain mine. I also thank Nicole S. Berrian (Class of 1999), Heather St. John (Class of 1998), and Jill R. Sperber (Columbia Law School, Class of 2000) for their valuable research assistance. I would also like to thank the Honorable James L. Oakes and the Honorable Richard J. Cardamone whose invitation to me to speak at the Second Circuit Judicial Conference (Sept. 7-10, 1989) allowed me to develop my thinking on these issues. I presented an abbreviated version of this article as the David J. Stoffer Lecture at Rutgers Law School (Newark) on October 13, 1998.

[FN1]. See generally Gary T. Marx, Undercover: Police Surveillance in America (1988).

[FN2]. See Jay Black et al., Doing Ethics in Journalism: A Handbook with Case Studies 123-24 (2d ed. 1995).

[FN3]. See, e.g., PrimeTime Live: Hidden Cameras/Hard Choices (ABC television broadcast, Feb. 12, 1997).

[FN4]. See Allan Hall Meets New York's Honey-Trappers, The Scotsman, Oct. 7, 1998, at 14, available in 1998 WL 19801334; Jon Rutter, Valentine's Day Is a Massacre for Unfaithful, Lancaster New Era, Feb. 15, 1998, at A1, available in 1998 WL 8262875.

[FN5]. See J. Kirk Barefoot, Undercover Investigation 115-17 (3d ed. 1995); Marx, supra note 1, at 10-11.

[FN6]. See, e.g., Havens Realty Corp. v. Coleman, 455 U.S. 363, 368 (1982) (involving a plaintiff who employed black “testers” to determine whether the defendant practiced racial steering in public housing).

[FN7]. Virtually no one suggests abandonment of undercover techniques altogether. Even the most skeptical acknowledge the need for such techniques, see Sissela Bok, Lying: Moral Choice in Public and Private Life xv-xxii, 186-89, 267 (1978); Marx, supra note 1, at xvii-xix, 233, and the most enthusiastic may well see the undesirable aspects. See Marx, supra note 1, at v (quoting police official).

[FN8]. See, e.g., United States v. Russell, 411 U.S. 423, 435-36 (1973) (asserting that sometimes “deceit is the only practicable law enforcement technique available”); see also infra note 177. One example, of course, is the fair housing investigation, in which investigators of different races pretend to be interested in renting or purchasing housing, to determine whether brokers will provide the same listings to people of different races. See, e.g., Coleman, 455 U.S. at 379 (allowing standing to black testers); see also Marx, supra note 1, at 52. Recently, the Equal Employment Opportunity Commission announced that it would use undercover techniques to investigate employment discrimination. See Katherine Q. Seelye, Agents to Go Undercover in Detection of Hiring Bias, N.Y. Times, Dec. 7, 1997, § 1, at 31.

[FN9]. See George E. Dix, Undercover Investigations and Police Rulemaking, 53 Tex. L. Rev. 203, 208 & n.7 (1975); Russell Baker, Quiet, Quiet, Louie, There's a Bug in That Martini Olive, N.Y. Times, Feb. 13, 1998, at A27.

[FN10]. For an extended description of the ABSCAM (Abdul Scam) operation, see Select Comm. to Study Undercover Activities of Components of the Dep't of Justice, Final Report to the U.S. Senate, S. Rep. No. 97-682 (1982) [hereinafter Final Report ]; Robert I. Blecker, Beyond 1984: Undercover in America-Serpico to ABSCAM, 28 N.Y.L. Sch. L. Rev. 823, 870-965 (1984). Congress devoted substantial attention to undercover operations following the disclosure of the ABSCAM operation. See Subcomm. on Civil and Constitutional Rights of the Comm. on the Judiciary, FBI Undercover Operations, H.R. Doc. 98-267, at 1-2 (1984) [hereinafter FBI Undercover Operations ] (House committees held 21 hearings on Department of Justice undercover activities over the four years following ABSCAM). In the 1980's, much scholarly work focused upon law enforcement's use of undercover operations. See, e.g., ABSCAM Ethics: Moral Issues and Deception in Law Enforcement (Gerald M. Caplan ed., 1983) [hereinafter ABSCAM Ethics ]; Marx, supra note 1; Blecker, supra ; Dolores A. Donovan, Informers Revisited: Government Surveillance of Domestic Political Organizations and the Fourth and First Amendments, 33 Buff. L. Rev. 333 (1984); Katherine Goldwasser, After ABSCAM: An Examination of Congressional Proposals to Limit Targeting Discretion in Federal Undercover Investigations, 36 Emory L.J. 75 (1987). Though the subject still receives some attention, see, e.g., Tracey Maclin, Informants and the Fourth Amendment: A Reconsideration, 74 Wash. U. L.Q. 573 (1996), the amount of scholarly attention seems to have declined in the 1990's.

[FN11]. See Steve Coz, When Tabloids Cross the Line, N.Y. Times, May 29, 1997, at A21 (“It has been reported that the Florida-based Globe tabloid paid Suzen Johnson, a former flight attendant, to fly to New York City and entice Frank Gifford... into meeting her in a hotel room.... [T]he reports also say the Globe arranged to secretly videotape the rendezvous.”); Howard Kurtz, Gifford Tumbles into Trap: Globe's Tactics in Liaison Cause a Stir, Wash. Post, May 17, 1997, at H1, available in 1997 WL 10693734. Dick Morris, a key advisor to President Clinton was subjected to a similar undercover operation. See Richard Cohen, Wired Eyes: How Tapes and Technology Freeze Our Times, Wash. Post, Feb. 22, 1998, at W20, available in 1998 WL 2469046; Howard Kurtz, Tabloid Rings Up Another Hot Scoop, Wash. Post, Aug. 30, 1996, at A38, available in 1996 WL 10728805.

[FN12]. See Susan Paterno, The Lying Game, Am. Journalism Rev., May 1997, at 40, 40-42.

[FN13]. See, e.g., id. A more general reevaluation of the quality of journalism has been going on for some time. See James Fallows, Breaking the News: How the Media Undermine American Democracy 10-128 (1996); Stephen Budiansky, The Media's Message, U.S. News & World Rep., Jan. 9, 1995, at 45; Bernard Weinraub, Bad Guys, Good Guys: Journalists in the Movies, N.Y. Times, Oct. 13, 1997, at E1. Indeed, the trend toward suing news organizations for newsgathering techniques began long before the jury verdict in Food Lion, Inc. v. Capital Cities/ABC, Inc. was announced. See Barry Meier & Bill Carter, Undercover Tactics by TV Magazines Fall Under Attack, N.Y. Times, Dec. 23, 1996, at A1.

[FN14]. Perhaps this lack of comparative analysis results from the artificial subject matter distinction between media law and criminal procedure. See generally Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 758-59 (1994) (discussing untoward effects of scholars considering constitutional law and criminal procedure as two distinct subjects).

[FN15]. See infra notes 98-104 and accompanying text.

[FN16]. See, e.g., Dietemann v. Time, Inc., 449 F.2d 245, 246 (9th Cir. 1971) (involving allegations that Life Magazine, pursuant to an arrangement with the District Attorney's Office, gained access to the plaintiff's home by subterfuge); cf. Henderson v. Colorado, 879 P.2d 383, 385 (Colo. 1994) (holding that a police officer's flight over defendant's property in a news helicopter was not a search under the Fourth Amendment).

[FN17]. See Sharon LaFraniere, Barry Arrested on Cocaine Charges in Undercover FBI Police Operation: Sources Say Mayor Used Crack in Downtown D.C. Hotel Room, Wash. Post, Jan. 19, 1990, at A1; Sari Horwitz & Sharon LaFraniere, Barry Turns Over Government Power, Wash. Post, Jan. 20, 1990, at A1; Sharon LaFraniere, Sting Postponed Often, Sources Say, Wash. Post, Jan. 23, 1990, at A1.

[FN18]. See Richard A. Posner, The Right of Privacy, 12 Ga. L. Rev. 393, 395, 399-400 (1978).

[FN19]. See infra note 40.

[FN20]. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[FN21]. I use privacy in this article to mean the ability to control information about oneself. There is a debate about whether privacy is a distinct concept or, instead, is merely reducible to other distinct interests. See, e.g., Judith Wagner DeCew, The Scope of Privacy in Law and Ethics, 5 Law & Phil. 145, 149 (1986) [hereinafter DeCew, Scope of Privacy ]; Charles Fried, Privacy, 77 Yale L.J. 475, 477 (1968) (privacy is not merely a derivative right); Judith Jarvis Thomson, The Right to Privacy, 4 Phil & Pub. Aff. 295, 312-13 (1975) (privacy as a derivative right). See generally Judith Wagner DeCew, In Pursuit of Privacy: Law, Ethics, and the Rise of Technology 29, 46 (1997) [hereinafter DeCew, Pursuit of Privacy ]; Laurence H. Tribe, American Constitutional Law § 15-1, at 1302-03 (2d ed. 1988) (summarizing attempts at classification). Even among those who believe that privacy is a distinct concept, there is a debate about its scope, that is, whether it encompasses more than control over information about oneself. See, e.g., Alan F. Westin, Privacy and Freedom 7 (1967) (privacy deals only with information); Hyman Gross, The Concept of Privacy, 42 N.Y.U. L. Rev. 34, 35-36 (1967) (same); W.A. Parent, A New Definition of Privacy for the Law, 2 Law & Phil. 305, 306 (1983) (same). See generally Jerry Kang, Information Privacy in Cyberspace Transactions, 50 Stan. L. Rev. 1193, 1202-05 (1998) (identifying three distinct clusters of ideas subsumed under the concept of privacy). For instance, many consider the ability to decide issues for oneself without interference from others as a privacy interest. See DeCew, Pursuit of Privacy, supra, at 28-45; DeCew, Scope of Privacy, supra, at 159-65. But see Gross, supra, at 38, 43-45 (criticizing approach); Louis Henkin, Privacy and Autonomy, 74 Colum. L. Rev. 1410, 1424-25 (1974) (same). Indeed, the Supreme Court explicitly characterizes at least one of these interests, namely the right to decide matters of procreation, as a privacy right. See Roe v. Wade, 410 U.S. 113, 152-54 (1973); Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965); see also Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Tribe, supra, § 15-1.

[FN22]. See U.S. Const. amend. IV.

[FN23]. Id.

[FN24]. Id.

[FN25]. See United States v. United States District Court, 407 U.S. 297, 316-18 (1972); Terry v. Ohio, 392 U.S. 1, 20-21 (1968).

[FN26]. See generally 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.1, at 2-18 (3d ed. 1996); Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 3.1, at 105-06 (2d ed. 1992).

[FN27]. Such actions are called Bivens actions because the Supreme Court first implied a right of action based on the Constitution in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971).

[FN28]. See infra notes 139-42, 243-44 and accompanying text.

[FN29]. See infra note 146.

[FN30]. See infra notes 318, 353-56 and accompanying text.

[FN31]. See United States v. Caceres, 440 U.S. 741, 754-58 (1979) (declining to adopt a “rigid rule” requiring courts to apply exclusionary rule to violations of government regulations); see also infra notes 305-08 and accompanying text.

[FN32]. See also LaFave & Israel, supra note 26, at §§ 5.1 & 5.2, at 278-82; Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 5.2, at 420-30 (2d ed. 1986); Marx, supra note 1, at 188-90. Some prosecutions based on particularly troublesome undercover operations have foundered on the entrapment defense. See, e.g., Washington v. Lively, 921 P.2d 1035, 1046, 1048-49 (Wash. 1996); Sanford Levinson, Under Cover: The Hidden Costs of Infiltration, in ABSCAM Ethics, supra note 10, at 43, 55 (ultimately Levinson sees little value in the entrapment defense as a limitation on undercover operations). [FN33]. See United States v. Russell, 411 U.S. 423, 435-36 (1973). In Russell, the Court found that the lower courts could not punish “overzealous law enforcement,” or exercise a “ ‘chancellor's foot’ veto over law enforcement practices of which [the courts] did not approve.” Id. at 435. Rather, said the Court, the entrapment defense rests on the principle that Congress could not have intended criminal punishment for a defendant who was induced by the government to commit an offence. See id. In the Court's view, using entrapment to exercise a veto over inappropriate law enforcement techniques would introduce an “unmanageably subjective standard,” and thus be unworkable. Id. ; see also Dix, supra note 9, at 276, 279. Some courts, however, had previously taken different approaches. See, e.g., Walker v. Indiana, 262 N.E.2d 641, 645 (Ind. 1970) (requiring that law enforcement officers have probable cause to believe that a suspect has in fact committed a crime before using undercover techniques to enter into a transaction with a suspect), overruled by Hardin v. Indiana, 358 N.E.2d 134, 135 (Ind. 1976); New Mexico v. Sainz, 501 P.2d 1247, 1249 (N.M. Ct. App. 1972) (requiring an objective standard), overruled by New Mexico v. Fiechter, 547 P.2d 557, 560 (N.M. 1976); see also Dix, supra note 9, at 250-52, 279-283.

[FN34]. See Burdeau v. McDowell, 256 U.S. 465, 475-77 (1921); La Fave, supra note 26, § 1.8(a), at 218-21.

[FN35]. See William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 389 (1960) (creating these categories). The Restatement (Second) also follows this categorization. See Restatement (Second) of Torts § 652A (1976).

[FN36]. Restatement (Second) of Torts § 652B. These two elements have been codified in some states. See, e.g., Neb. Rev. Stat. § 20-203 (1997).

[FN37]. See Hamberger v. Eastman, 206 A.2d 239, 241-42 (N.H. 1964). See generally Ellen Alderman & Caroline Kennedy, The Right to Privacy 249-65 (1995).

[FN38]. 449 F.2d 245 (9th Cir. 1971).

[FN39]. See id. ; see also Miller v. National Broad. Co., 232 Cal. Rptr. 668, 679 (Cal. Ct. App. 1986) (news crew's pursuit of paramedics into a bedroom); Kersis v. Capital Cities/ABC, Inc., 22 Media L. Rep. 2321, 2322, 2327 (Cal. Super. Ct. 1994) (unofficially published opinion) (electronic eavesdropping). See generally Alderman & Kennedy, supra note 37, at 176-90; Victor A. Kovner et al., Recent Developments in Newsgathering, Invasion of Privacy and Related Torts, in 1 Communications Law 1996, at 507, 549-91 (PLI Pats., Copyrights, Trademarks & Literary Prop. Course Handbook Series No. G-460, 1996); John W. Wade, The Tort Liability of Investigative Reporters, 37 Vand. L. Rev. 301, 317-19 (1984).

[FN40]. This article does not address media intrusions that do not involve deception. Some cases have treated surveillance as an invasion of privacy even when the surveillance was visible to the subject and the person conducting the surveillance made no attempt to hide from, much less deceive, the subject. See, e.g., Galella v. Onassis, 487 F.2d 986, 994 & n.11, 995 (2d Cir. 1973) (implied right of action under criminal law of harassment); Pinkerton Nat'l Detective Agency, Inc. v. Stevens, 132 S.E.2d 119, 122-23 (Ga. Ct. App. 1963) (non-media case); Schultz v. Frankfort Marine Accident & Plate Glass Ins. Co., 139 N.W. 386, 389-90 (Wis. 1913) (non-media case treating “rough shadowing” as defamatory); Restatement (Second) of Torts § 652B cmt. d (1977) (stating that an intrusion may arise from a “course of hounding the plaintiff”). For instance, the debate about the behavior of the paparazzi following the death of Princess Diana Spenser in 1997 dealt with the public and very visible observation and photographing of individuals. See generally Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C. L. Rev. 989, 1055-59 (1995) (arguing for tort relief for highly offensive intrusions in public places).

[FN41]. See generally Restatement (Second) of Torts § 158 (1964) (same); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 13, at 67-84 (5th ed. 1984) (trespass to land). [FN42]. See Restatement (Second) of Torts § 167; Keeton et al., supra note 41, § 18, at 112.

[FN43]. See Restatement (Second) of Torts § 173; Keeton et al., supra note 41, § 18, at 119-21.

[FN44]. See, e.g., Miller, 232 Cal. Rptr. at 677; Le Mistral, Inc. v. Columbia Broad. Sys., 402 N.Y.S.2d 815, 816-17 (N.Y. App. Div. 1978); Prahl v. Brosamle, 295 N.W.2d 768, 780-82 (Wis. Ct. App. 1980).

[FN45]. See Restatement (Third) of Unfair Competition §§ 39-45 (1993); Section of Antitrust Law, American Bar Association, Business Torts & Unfair Competition: A Practitioner's Handbook 173-79 (A. Michael Ferrill ed., 1996) [hereinafter Business Torts ].

[FN46]. See Restatement (Third) of Unfair Competition § 42.

[FN47]. Indeed, a corporation cannot state a claim for invasion of privacy. See Restatement (Second) of Torts § 652I cmt. c; David A. Elder, The Law of Privacy § 1.4, at 11-13 (1991); Robert D. Sack & Sandra S. Baron, Libel, Slander, and Related Problems §10.3.5, at 574 (2d ed. 1994); see also W.C.H. of Waverly v. Meredith Corp., 13 Med. L. Rep. 1648, 1650 (W.D. Mo. 1986).

[FN48]. See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 571-73 (1977) (distinguishing the State's interest in providing cause of action for “appropriation” of name or likeness from its interest in establishing “false-light” privacy causes of action, noting that the State's interest in the former is protecting the proprietary interests of the individual so as to encourage enterprise while the State's concern with respect to the latter is preventing injuries to reputation and the accompanying mental distress).

[FN49]. See Rockwell Graphic Sys., Inc. v. DEV Indus., 925 F.2d 174, 178 (7th Cir. 1991); Posner, supra note 18, at 397-98. See generally Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 480 (1974) (same); Restatement (Third) of Unfair Competition § 39 cmt. a (stating that rationale involves both encouraging investment in information by protecting the product of such investment and protecting personal privacy as a second rationale). Thus, in order to be protected, the trade secret must have value that provides its possessor with an actual or potential economic advantage over competitors who do not possess the information. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011-12 & n.15 (1984); Restatement (Third) of Unfair Competition § 39 cmt. e; see also Zacchini, 433 U.S. at 573 (distinguishing “false-light” privacy from claim of “appropriation” of name or likeness for purposes of trade).

[FN50]. Such efforts have a long history, particularly in the food industry. For the classic exposé of unsanitary conditions in the food industry, see Upton Sinclair, The Jungle (1906); see also John Milton Cooper, Jr., Pivotal Decades: The United States: 1900-1920, at 85-86 (1990) (discussing the impact of Sinclair's work). For reports of other media efforts to infiltrate food processing operations, see CBS Inc. v. Davis, 510 U.S. 1315, 1315-16 (Blackmun, Circuit Justice 1994) involving CBS' use of hidden-camera footage of a meat-packing plant, and Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1224, 1226-27 (M.D.N.C. 1996). See also Paterno, supra note 12, at 1, for a discussion of a Wall Street Journal reporter securing a job in a chicken processing plant.

[FN51]. See Food Lion, 951 F. Supp. at 1227.

[FN52]. See id.

[FN53]. See id. [FN54]. See id. at 1430. Perhaps a cause of action for breach of a duty of loyalty should lie only against competitors or potential competitors who want to use a company's trade secrets to compete with it and others who wish to unfairly deprive the company holding a trade secret of the benefit of its ingenuity or innovation. See, e.g., Zacchini, 433 U.S. at 573-77 (allowing cause of action against media for broadcasting human cannonball's entire performance because doing so allowed people to see the performance without paying performer for his efforts). But see id. at 581 (Powell, J., dissenting) (stating that news media is protected by First Amendment in broadcasting performance “absent a strong showing... that the news broadcast was a subterfuge or cover for private or commercial exploitation”). An example of the latter is publishing information enabling customers to defraud the company. See Washington v. Northwest Passage, Inc., 585 P.2d 794, 796 (Wash. 1978). ABC was not seeking to compete with Food Lion or to deprive Food Lion of the benefit of any ingenuity and innovation attributable to the food store chain; rather, ABC sought and publicized confidential information about Food Lion to correct consumers' misimpression of Food Lion-enabling consumers to make fully-informed choices about patronizing Food Lion's stores. See Food Lion, 951 F. Supp. at 1230; see also Posner, supra note 18, at 394-95, 399-401, 408 (stating that privacy simply allows one person to unjustifiably manipulate and control others). Indeed, in the Fourth Amendment context, the Supreme Court has already accepted the distinction between those who seek and use confidential information to compete with a company and those who do so for other purposes. See Dow Chem. Co. v. United States, 476 U.S. 227, 232 (1986). In Dow, the Supreme Court dismissed the claim that the Government had breached the Fourth Amendment by violating the law of unfair competition and trade secrets. See id. The Court explained that while competitors might be prohibited from taking the actions that the government had taken in the case before it, governments do not generally seek to appropriate trade secrets. See id. The government did not photograph Dow Chemical's manufacturing processes to compete with it but, rather, to regulate it. See id. Indeed, said the Court, if the Government had used the information it acquired to compete with Dow Chemical, the company might have a Takings Clause claim. See id.

[FN55]. See Food Lion, 951 F. Supp. at 1230.

[FN56]. See id. at 1229-30; Food Lion, Inc. v. Capital Cities/ABC, Inc., 984 F. Supp. 923, 927 (M.D.N.C. 1997) (reporting that jury awarded $1,402 in compensatory damages on the fraud, trespass, and breach of loyalty claims, and $5,545,745 in punitive damages on the fraud claim); see also Food Lion Awarded Damages from ABC, N.Y. Times, Dec. 31, 1996, at D4; Howard Kurtz, Jury Finds ABC Committed Fraud in Food Lion Investigative Story, Wash. Post, Dec. 21, 1996, at A7; Howard Kurtz & Sue Anne Pressley, Jury Finds Against ABC for $5.5 Million: Punitive Damages Awarded to Food Lion over Hidden-Camera Report, Wash. Post, Jan. 23, 1997, at A1.

[FN57]. See N.C. Gen. Stat. § 75-1.1 (1994).

[FN58]. See Food Lion, 951 F. Supp. at 1230-33 & n.8.

[FN59]. As an FTC staff report noted, there “is no overarching federal statute governing information privacy in the United States. Congress has addressed information privacy on a sectoral basis, crafting statutes that govern distinct concerns and establish targeted individual rights.” Bureau of Consumer Protection, Federal Trade Commission, Staff Report, Public Workshop on Consumer Privacy on the Global Information Infrastructure (1996); reprinted in Federal Trade Commission, Staff Report: Public Workshop on Consumer Privacy on the Global Information Infrastructure, ch. 2, at 7 n.20 (Dec. 1996) ; see also Alderman & Kennedy, supra note 37, at 330-31.

[FN60]. 18 U.S.C. §§ 2510-2521 (1994 & Supp. III 1997).

[FN61]. See 18 U.S.C. § 2511(1) (1994 & Supp. III 1997).

[FN62]. 18 U.S.C. § 2511(2)(d). [FN63]. See S. Rep. No. 99-541, at 17 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3571. Congress noted that the courts (in particular the Sixth Circuit in Boddie v. American Broadcasting Co., 731 F.2d 333 (1984)) had misconstrued the previous version of the statute, which made it unlawful for a participant in a conversation to record the conversation “for the purpose of committing any other injurious act.” S. Rep. No. 99-541, at 17, reprinted in 1986 U.S.C.C.A.N. 3555, 3571 (quoting 18 U.S.C. § 2511(2)(d) (1982) (current version at 18 U.S.C. § 2511(2)(d) (1994 & Supp. III 1997))). The courts erroneously construed the provision to impose liability upon journalists for recording conversations in which they participate. See id. The Committee report observed that such a broad interpretation of the statute would chill the First Amendment right to a Free Press. See id. See generally Sussman v. American Broad. Cos., 971 F. Supp. 432, 435 (C.D. Cal. 1997) (discussing legislative history of statute).

[FN64]. See Kent R. Middleton, Journalists and Tape Recorders: Does Participant Monitoring Invade Privacy?, 2 Comm/ Ent 287, 288 & n.5, 304-09 (1979); see also Cal. Penal Code §§ 631-632 (West 1988 & Supp. 1999); Fla. Stat. Ann. § 934.03 (West 1996 & Supp. 1999); Mich. Comp. Laws Ann. § 750.539c (West 1991); Wash Rev. Code Ann. § 9.73.030 (West 1998).

[FN65]. See 18 U.S.C. § 2518(3) (1994).

[FN66]. See 18 U.S.C. § 2511(2)(c).

[FN67]. See George Orwell, Animal Farm 112 (Harcourt, Brace & Co. ed. 1946).

[FN68]. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 96-97, 172-73 (1980); Wayne R. LaFave, Controlling Discretion by Administrative Regulations: The Use, Misuse, and Nonuse of Police Rules and Policies in Fourth Amendment Adjudication, 89 Mich. L. Rev. 442, 449, 462-63, 472-73 (1990); Robert L. Misner, Justifying Searches on the Basis of Equality of Treatment, 82 J. Crim. L. & Criminology 547 (1991); Silas J. Wasserstrom & Louis Michael Seidman, The Fourth Amendment as Constitutional Theory, 77 Geo. L.J. 19, 92-108 (1988). See generally Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333, 355-56 & n.104 (1998) (explaining that Fourth Amendment rights incorporate equality principles similar to those of other Bill of Rights provisions).

[FN69]. See Misner, supra note 68, at 547-48. Sherry Colb discusses this in terms of a protection against the “targeting” harm-the harm from being singled out as a target of intrusion. See Sherry F. Colb, Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence, 96 Colum. L. Rev. 1456, 1488 (1996). In practice there is often inequality with respect to law enforcement searches for several reasons. In particular, police have wide discretion in deciding whether to search a person even when they have probable cause or reasonable suspicion that the person is engaged in unlawful activity. For instance, police do not stop all traffic violators or all people who exhibit nervousness in their presence. Such decisions presumably reflect some biases. Similarly, police have wide discretion in deciding who they will attempt to convince to consent to searches, a frequent basis for conducting searches without a warrant or probable cause, and these decisions too likely reflect some biases. Nevertheless, the point remains that every person has the same constitutionally-protected minimum level of privacy under Fourth Amendment doctrine.

[FN70]. See Donovan, supra note 10, at 368; Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 103 (1991).

[FN71]. Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring).

[FN72]. Generally “probable cause” is required, but in some circumstances a more modest level of individualized suspicion, such as reasonable, articulable suspicion, suffices. See Terry v. Ohio, 392 U.S. 1, 27 (1968). [FN73]. See Blecker, supra note 10, at 917; Maclin, supra note 10, at 611-13, 620-28; Slobogin, supra note 70, at 23-24.

[FN74]. See, e.g., Florida v. Riley, 488 U.S. 445 (1989); California v. Ciraolo, 476 U.S. 207 (1986); Dow Chem. Co. v. United States, 476 U.S. 227 (1986).

[FN75]. See Riley, 488 U.S. at 449-51; Ciraolo, 476 U.S. at 213-14.

[FN76]. See California v. Greenwood, 486 U.S. 35, 40-41 (1988). As will become evident below, the timorous are in danger even if they stay at home. Cf. Murphy v. Steeplechase Amusement Co., 166 N.E. 173, 174 (N.Y. 1929) (coining the classic phrase “ [t]he timorous may stay at home” in explaining that plaintiff suffered no legally cognizable injury because he had assumed the risk of the harm that had befallen him).

[FN77]. See, e.g., United States v. Jacobsen, 466 U.S. 109 (1984). Of course, in the delivery company scenario there is no assumption of the risk in the traditional sense of entrusting information to another with the possibility that they will intentionally disclose it or give someone else access. Rather there is assumption of risk only in the broadest sense that every time one leaves home with an item, the item could be searched or seized, either accidentally or intentionally, by someone else.

[FN78]. See James J. Tomkovicz, Beyond Secrecy for Secrecy's Sake: Toward an Expanded Vision of the Fourth Amendment Privacy Province, 36 Hastings L.J. 645, 680-81 (1985).

[FN79]. See Clark D. Cunningham, A Linguistic Analysis of the Meanings of “Search” in the Fourth Amendment: A Search for Common Sense, 73 Iowa L. Rev. 541, 573, 582-83 (1988); Goldwasser, supra note 10, at 82-83.

[FN80]. See infra notes 293-97 and accompanying text.

[FN81]. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980).

[FN82]. The Constitution explicitly confers rights to only very limited information. See U.S. Const. art. I, § 5, cl. 3 (requiring maintenance of a legislative journal); id. at art. I, § 9, cl. 7 (mandating publication of statements and accounts of all government receipts and expenditures).

[FN83]. See Potter Stewart, “Or of the Press,” 26 Hastings L.J. 631, 636-37 (1975).

[FN84]. See id. at 636 (“The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act. The Constitution, in other words, establishes the contest [between Government and the press], not its resolution.”).

[FN85]. See Houchins v. KQED, Inc., 438 U.S. 1, 16 (1978); Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978) (involving newsroom searches); Pell v. Procunier, 417 U.S. 817, 833-34 (1974); Saxbe v. Washington Post Co., 417 U.S. 843, 850 (1974); Branzburg v. Hayes, 408 U.S. 665, 683-86, 690-91 (1972) (involving confidential sources); Anderson v. WROC-TV, 441 N.Y.S.2d 220, 223 (N.Y. Sup. Ct. 1981); City of Oak Creek v. King, 436 N.W.2d 285, 291 (Wis. 1989). Some have suggested that the reverse is also true: if the media can get information, then others can obtain it as well. See, e.g., Amelkin v. Commissioner, Dep't of State Police, 936 F. Supp. 428, 431 (W.D. Ky. 1996), vacated in part on other grounds, aff'd in relevant parts sub nom. Amelkin v. McClure, 168 F.2d 893 (6th Cir. 1999).

[FN86]. 438 U.S. 1 (1978). [FN87]. 417 U.S. 817 (1974).

[FN88]. See Houchins, 438 U.S. at 15-16; Pell, 417 U.S. at 833-34. One difficulty in giving the press greater rights than the general public is defining the press, as distinct from the general citizenry. See First Nat'l Bank v. Bellotti, 435 U.S. 765, 797-802 (1978) (Burger, C.J., concurring); Branzburg, 408 U.S. at 703-05; Margaret A. Blanchard, The Institutional Press and Its First Amendment Privileges, 1978 Sup. Ct. Rev. 225, 234. But see Floyd Abrams, The Press is Different: Reflections on Justice Stewart and the Autonomous Press, 7 Hofstra L. Rev. 563, 580-83 (1979) (criticizing the Court's refusal to define the press); William P. Marshall & Susan Gilles, The Supreme Court, the First Amendment, and Bad Journalism, 1994 Sup. Ct. Rev. 169, 205 n.191 (same).

[FN89]. See Houchins, 438 U.S. at 15-16; Pell, 417 U.S. at 833-34. The equal treatment principle has also been given broader application with respect to the media. See Cohen v. Cowles Media Co., 501 U.S. 663, 670 (1991) (holding that Minnesota doctrine of promissory estoppel is law of general applicability); Leathers v. Medlock, 499 U.S. 439, 447 (1991) (holding that taxation of all tangible property is law of general applicability); Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 232-33 (1987) (holding content-based taxation of certain magazines unconstitutional); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 582-85 (1983) (holding unconstitutional a “use tax” structured so that only 14 of the state's 388 paid circulations newspapers became liable for tax payments); see also Police Dep't v. Mosley, 408 U.S. 92, 94-95 (1972) (holding selective exclusion of picketing next to school unconstitutional); Blanchard, supra note 88, at 226, 228-29; Marshall & Gilles, supra note 88, at 205 n.191 (criticizing Court's approach).

[FN90]. See Houchins, 438 U.S. at 19-40 (Stevens, J., dissenting).

[FN91]. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 577-80 (1980) (plurality opinion).

[FN92]. See, e.g., Press-Enter. Co. v. Superior Court, 478 U.S. 1, 10-11 (1986); Richmond Newspapers, Inc., 448 U.S. at 563-75, 576 n.11. See generally Kimba M. Wood, Reexamining the Access Doctrine, 69 S. Cal. L. Rev. 1105, 1105, 1108-09 (1996).

[FN93]. Press-Enter. Co., 478 U.S. at 8; see also Globe Newspaper Co., 457 U.S. at 605-06 (holding that right to access to criminal trials plays a significant role in the functioning of the judicial process and government as a whole); Richmond Newspapers, Inc., 448 U.S. at 569 (discussing the historical presumption of open criminal trials); id. at 596-97 (Brennan, J., concurring) (explaining that publicizing trial proceedings aids accurate fact finding); Wood, supra note 92, at 1117.

[FN94]. See Press-Enter. Co., 478 U.S. at 25-28 (Stevens, J., dissenting); see also Wood, supra note 92, at 1116 (“ [T]he sole problem with the function prong [of the access test] is that, as applied, it lacks a meaningful limiting principle.”). In particular, the benefits of openness are viewed as 1) enhancing the quality and safeguarding the integrity of the factfinding process because of both the in terrorem effect of public scrutiny and the prospect that potential witnesses will learn that they have relevant evidence, 2) providing an appearance of fairness, and 3) allowing public participation, which can serve as a check on the government actors running the proceeding. See Globe Newspaper Co., 457 U.S. at 606. However, virtually any judicial proceeding (from jury deliberations, to grand jury proceedings, to conferences among the Justices of the Supreme Court, to plea bargaining sessions) could similarly be enhanced by such openness. See, e.g., Wood, supra note 92, at 1112-14 (arguing that under the function prong of the Supreme Court's test for determining access, it is more important to allow access to plea negotiations between prosecutors and defendants than to allow access to some court proceedings).

[FN95]. See C. Thomas Dienes et al., Newsgathering and the Law §§ 12-2, 12-4(c)(2), at 430-40, 463-66 (1997); see also People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 895 P.2d 1269, 1280-81 & n.20 (Nev. 1995). The same “assumption of the risk” approach used in Fourth Amendment analysis is used in adjudicating common law “intrusion” claims. See Shulman v. Group W Prods., 955 P.2d 469, 492 (Cal. 1998); Elder, supra note 47, § 2:7, at 49, § 2:17, at 94; McClurg, supra note 40, at 1036-41.

[FN96]. See, e.g., Shulman, 955 P.2d at 492; Miller v. National Broad. Co., 232 Cal. Rptr. 668, 677-78, 684-85 (Cal. Ct. App. 1986). For instance, when deciding whether journalists had tortiously intruded upon an accident victim, the Shulman court focused on the observations that could be made from the highway, the presence of any bystanders at the accident scene, and the statements such bystanders could hear. See Shulman, 955 P.2d at 491. One complication with regard to the equality principle is the consent doctrine. The press may be viewed as having implied consent to intrude even when others would lack such implied consent. See, e.g., Florida Publ'g Co. v. Fletcher, 340 So. 2d 914, 918 (Fla. 1976). Moreover, where consent by law enforcement officers to intrusions upon private property is valid, law enforcement is more likely to grant the press such consent than a member of the general public. Thus, as a practical matter the press may enjoy more access to private property than the general public.

[FN97]. See Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971); accord Anderson v. WROC-TV, 441 N.Y.S.2d 220, 223 (N.Y. Sup. Ct. 1981); Prahl v. Brosamle, 295 N.W.2d 768, 781 (Wisc. Ct. App. 1980). See generally Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991).

[FN98]. Congress and state legislatures sometimes enact statutes giving law enforcement a greater right to intrude than the general public. Several states have treated the police and private participant monitoring differently. For instance several states allow the police to engage in participant monitoring, but prohibit others from doing so. See, e.g., Cal. Pen. Code § 633 (West 1988 & Supp. 1999); Md. Code Ann., Cts. & Jud. Proc. § 10-402(2) (1995 & Supp. 1997). See generally Omnibus Crime Control Act, 18 U.S.C. § 2511(2)(d) (1994 & Supp. III 1997) (allowing consensual monitoring both by law enforcement and private citizens provided that the conversations were not intercepted “for the purpose of committing any criminal or tortious act”). Presumably, states could accord media organizations greater access rights than those enjoyed by the general public. See, e.g., Cal. Penal Code § 627.1 (West 1998) (exempting journalists from ban on outsiders entering school grounds without having registered with the principal); 705 Ill. Comp. Stat. Ann. 405/1-5(6) (West 1993 & Supp. 1998) (exempting press from the exclusion of the public from juvenile court proceedings); N.Y. Soc. Serv. Law § 136(1) (McKinney 1992 & Supp. 1999) (granting news organizations special access to public assistance records).

[FN99]. See, e.g., Desnick v. American Broad. Co., 44 F.3d 1345, 1353 (7th Cir. 1995); Alaska v. Glass, 583 P.2d 872, 881 (Alaska 1978). As the Glass Court stated: If for the purposes of civil litigation, participant electronic bugging constitutes an invasion of a common law right to privacy, such conduct obviously violates an expressed constitutional declaration of the right. In the absence of a search warrant, evidence so obtained should be held to be illegally acquired. Id. See generally Pearson v. Dodd, 410 F.2d 701, 708 (D.C. Cir. 1969) (Tamm, J., concurring) (criticizing the majority opinion for applauding deceptive techniques that the dissent would have castigated law enforcement for using). [FN100]. 486 U.S. 35 (1988).

[FN101]. See id. at 40 n.4.

[FN102]. See id. at 45.

[FN103]. See Desnick, 44 F.3d at 1353.

[FN104]. See id.

[FN105]. See Meier & Carter, supra note 13 (quoting attorney Neville Johnson as stating, “The government cannot do what the media is allowed to do and private business cannot do what the media is allowed to do”); see also Black et al., supra note 2, at 129 (quoting Rochester Times Union and Democrat and Chronicle's Code of Ethics ); Paul N. Williams, Investigative Reporting and Editing 110 (1978) (journalists should measure proposed undercover operations by the standards of the Fourth Amendment).

[FN106]. See United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting). Justice Harlan stated: Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks [of the government conduct in question] without at least the protection of a warrant requirement. Id. ; see also Delaware v. Prouse, 440 U.S. 648, 654 (1979); Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 403-04 (1974); Tomkovicz, supra note 78, at 684-85, 701 (arguing that Fourth Amendment decisions regarding whether an activity is a search are value judgments). Indeed, Justice Black, the preeminent foe of “balancing” approaches, noted that the Fourth Amendment was the only provision in the Bill of Rights that provided that the Court should determine the reasonableness of challenged governmental actions. See Braden v. United States, 365 U.S. 431, 444-45 (1961) (Black, J., dissenting); Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 866-67 (1960); see also Roger K. Newman, Hugo Black: A Biography 554-55 (1994).

[FN107]. See U.S. Const. amend IV.

[FN108]. John Donne, Devotions Upon Emergent Occasions, Meditation XVII, at 108 (Ann Arbor Paperback 1959) (1624).

[FN109]. See O'Connor v. Ortega, 480 U.S. 709, 730 (1987) (Scalia, J., concurring); Erving Goffman, Relations in Public 57-58 (Harper Colophon Books 1972) (1971); Donovan, supra note 10, at 357-60; Fried, supra note 21, at 484 (noting that love and friendship require different levels of disclosure; without the ability to differentiate the level of disclosure of facts about oneself, there can be no love or respect); Louis Hodges, The Journalist and Privacy, 9 J. Mass Media Ethics 197, 199 (1994); H.J. McCloskey, The Political Ideal of Privacy, 21 Phil. Q. 303, 308-09 (1971) (noting the need to recognize different levels of privacy for different people); Parent, supra note 21, at 306-07; Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 Cal. L. Rev. 957, 989-95 (1989); Tomkovicz, supra note 78, at 681 & n.151, 691-92. Indeed, the Supreme Court has at times recognized this. See U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989) ( “In an organized society, there are few facts that are not at one time or another divulged to another.”); Maclin, supra note 10, at 626-27 & n.291.

[FN110]. See Rodney A. Smolla, Free Speech in an Open Society 130 (1992).

[FN111]. Restatement (Third) of Unfair Competition § 39 cmt. f, at 432 (1993) (confidential disclosures to employees, licensees, and others will not destroy the secrecy necessary for protections as a trade secret, and trade secret protection can even survive limited non-confidential disclosure if the information does not become generally known or readily ascertainable by competitors); see also id. § 41 cmt. b; Business Torts, supra note 45, at 172-73.

[FN112]. See Restatement (Third) of Unfair Competition § 39 cmt. f, at 432.

[FN113]. The levels of intimacy argument probably does not serve to distinguish the possible intruders being discussed in this article: the press, law enforcement, and the general public. None of these possible intruders are on particularly intimate terms with individuals and none ordinarily receive information or access if the target fully knows their identity and purposes.

[FN114]. For example, law enforcement officials do not violate the Fourth Amendment when they acquire a person's banking records, because people give banks access to their banking records. See infra note 122 and accompanying text. Similarly, police may use devices that reveal the phone numbers called by a particular phone because telephone users freely divulge such information to the telephone company. See Smith v. Maryland, 442 U.S. 735, 743-45 (1979).

[FN115]. For instance, the Supreme Court first decided the reasonableness of expectations of privacy with regard to being tracked on public streets by pursuers using electronic tracking devices, having opaque bags of garbage placed at curbside for disposal searched, and having others overfly one's fenced-in property to observe things obscured at ground level in challenges to criminal convictions. See California v. Greenwood, 486 U.S. 35 (1988) (search of garbage); Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (overflight); California v. Ciraolo, 476 U.S. 207 (1986) (overflight); United States v. Knotts, 460 U.S. 276 (1983) (tracking devices).

[FN116]. See Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 28, 30 (1997); Craig M. Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468, 1470 (1985); see also Allen v. McCurry, 449 U.S. 90, 115 (1980) (Blackmun, J., dissenting) (“A trial court, faced with the decision whether to exclude relevant evidence, confronts institutional pressures that may cause it to give a different shape to the Fourth Amendment right from what would result in civil litigation of a damages claim.”); Maclin, supra note 10, at 623 (noting that the Supreme Court's opinions in the informant cases “have been transparent in their desire to affirm the convictions of guilty defendants”); William A. Schroeder, Deterring Fourth Amendment Violations: Alternatives to the Exclusionary Rule, 69 Geo. L.J. 1361, 1382-83 & n.172, 1421 (1981) (collecting sources). This problem is captured by the Holmesian adage that “hard cases make bad law.” Northern Sec. Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting).

[FN117]. Such privacy questions can arise in Bivens actions. However, in Bivens cases, a court must merely determine whether the defendants violated clearly established legal principles, see Elder v. Holloway, 510 U.S. 510, 515 (1994); Mitchell v. Forsyth, 472 U.S. 511, 524 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 817-19 (1982), so those cases often do not provide a vehicle to establish legal principles in close or difficult cases. See United States v. Peltier, 422 U.S. 531, 554-55 (1975) (Douglas, J., dissenting); Dallin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665, 756 (1970); Schroeder, supra note 116, at 1420. But see Wilson v. Layne, 119 S. Ct. 1692, 1697 (1999); County of Sacramento v. Lewis, 118 S. Ct. 1708, 1711 & n.4 (1998); Siegert v. Gilley, 500 U.S. 226, 232 (1991). Admittedly, perhaps, judges do not disregard the injuries shown by Bivens plaintiffs when deciding the reasonableness of expectations of privacy under the Fourth Amendment in criminal cases.

[FN118]. For example, some Right-to-Life organizations claim they have examined discarded waste from medical facilities to determine the names and addresses of those who obtained abortions at the facility. See Doe v. Mills, 536 N.W.2d 824 (Mich. Ct. App. 1995); Trash Becomes an Abortion Battleground, N.Y. Times, Dec. 3, 1995, at A4. See generally Samuel Abt, Cyclists Stage Protest as Drug Investigation Widens, N.Y. Times, July 25, 1998, at C1 (noting incident in which French journalists perused trash of Tour de France competitors).

[FN119]. Of course, once there is a “search,” i.e., an intrusion upon a reasonable expectation of privacy, see supra note 79 and accompanying text, the equal treatment principle no longer applies. See Misner, supra note 68, at 548. The Constitution gives a preferred position to law enforcement-the Constitution establishes a warrant procedure authorizing intrusions into citizens' privacy only for the Government. (The Constitution may authorize only governmental intrusion because it limits only the government's power to intrude. See e.g., Schneider v. Smith, 390 U.S. 17, 25 (1968); John E. Nowak & Ronald D. Rotunda, Constitutional Law § 12.1, at 470, § 16.53, at 1189 (5th ed. 1995).) Nevertheless, no general right to “search” others or their possessions has been recognized or conferred on anyone except law enforcement. (Perhaps some of the rules of civil procedure that permit discovery in the course of litigation come close to according private citizens the right to search others and their possessions. For instance, the Federal Rules of Civil Procedure give parties the right to inspect real property, personal property, and documents owned by an opposing party if such inspection is likely to lead to admissible evidence. See Fed. Civ. P. 34; Fed. R. Civ. P. 26(b); see also Fed. R. Civ. P. 35 (regarding physical and mental examination of a party).) This distinction between the power of law enforcement and the media to intrude upon reasonable expectations of privacy is particularly relevant with respect to cases in which journalists accompany law enforcement officers or emergency workers onto someone's property. See, e.g., Ayeni v. CBS Inc., 848 F. Supp. 362 (E.D.N.Y. 1994), aff'd sub nom. Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994); Baugh v. CBS, Inc., 828 F. Supp. 745 (N.D. Cal. 1993); Miller v. National Broad. Co., 232 Cal. Rptr. 668 (Cal. Ct. App. 1986); Anderson v. WROC-TV, 441 N.Y.S.2d 220 (N.Y. Sup. Ct. 1981); Magenis v. Fisher Broad., Inc., 798 P.2d 1106 (Or. Ct. App. 1990); Prahl v. Brosamle, 295 N.W.2d 768 (Wis. Ct. App. 1980). See generally Elsa Y. Ransom, Home: No Place for “Law Enforcement Theatricals”-The Outlawing of Police/Media Home Invasions in Ayeni v. Mottola, 16 Loy. L.A. Ent. L.J. 325 (1995). Such cases differ from cases in which the media engage in some activity that does not constitute a search. Journalists and private citizens may not enter private property merely because law enforcement or government officials can enter the property by virtue of a warrant (or some exception to the warrant requirement that allows such government officials to intrude upon a person's reasonable expectation of privacy). See Wilson v. Layne, 119 S. Ct. 1692 (1999). Media entry is allowed in such cases in some states because it is customary for the press to be invited to the site of newsworthy events. See Florida Publ'g Co. v. Fletcher, 340 So. 2d 914, 918 (Fla. 1976).

[FN120]. See California v. Greenwood, 486 U.S. 35, 39 (1988).

[FN121]. See Suburban Trust Co. v. Waller, 408 A.2d 758, 762-64 (Md. Ct. Spec. App. 1979); Restatement (Second) of Torts § 652B cmt. b, illus. 4 (1996).

[FN122]. See United States v. Miller, 425 U.S. 435, 440-45 (1976).

[FN123]. The Court's reluctance to incorporate statutes or caselaw creating privacy expectations could be attributed to federalism concerns. Perhaps the Court does not want to determine federal constitutional issues on the basis of state law. However, federalism does not prevent the Court from recognizing expectations of privacy established by federal regulations, yet the Court arguably does not even recognize such expectations of privacy. See, e.g., United States v. Caceres, 440 U.S. 741, 754-58 (1979).

[FN124]. See Greenwood, 486 U.S. at 51-52 & n.3 (Brennan, J., dissenting) (referring to social norms, city ordinances, and statutory and constitutional decisions to establish reasonable expectations of privacy); Robbins v. California, 453 U.S. 420, 428 (1981) (plurality opinion) (“ [E]xpectations of privacy are established by general social norms....”), overruled on other grounds by United States v. Ross, 456 U.S. 798 (1982); James A. Bush & Rece Bly, Expectation of Privacy Analysis and Warrantless Trash Reconnaissance after Katz v. United States, 23 Ariz. L. Rev. 283, 293-94 (1981) (“ [S]ocial custom... serves as the most basic foundation of a great many legitimate privacy expectations.”); see also Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978). This would not mean that state constitutional law or statutes restricting only law enforcement, and no one else, establish a “reasonable expectation of privacy” that must be recognized under the Fourth Amendment. Such a state constitutional ruling or statute, if directed only at law enforcement, would not qualify as a law of general applicability.

[FN125]. The Court explicitly rejected this approach in Greenwood. See 486 U.S. at 43-44; see also infra note 127 (discussing problems with approach).

[FN126]. See, e.g., Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). As the Roth Court said: Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Id. ; see also Perry v. Sindermann, 408 U.S. 593, 601 (1972). Somewhat counterintuitively, this approach not only applies to property, but to liberty as well (at least to some extent). See Hewitt v. Helms, 459 U.S. 460, 466, 469-71 (1983); Meachum v. Fano, 427 U.S. 215, 223-28 (1976) (finding that liberty interests are not necessarily implicated by changes of conditions of confinement, such as the disciplinary transfer of a prisoner); Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974). But see Sandin v. Conner, 515 U.S. 472, 472-73 (1995) (criticizing the decision in Hewitt, 459 U.S. 460). However, there is some protection of liberty independent of positive law (i.e., state law), based on the Constitution directly. See Hewitt, 459 U.S. at 466-67.

[FN127]. Admittedly, such an approach would raise problems in the Fourth Amendment context. First, it would preclude geographic uniformity. Police could engage in certain conduct in some states or localities, but not others. See Whren v. United States, 517 U.S. 806, 815 (1996) (refusing to rely on police enforcement practices to determine Fourth Amendment rights because allowing the Fourth Amendment's search and seizure protections to vary “from place to place and from time to time” was unacceptable); LaFave & Israel, supra note 26, § 2.10, at 97. This lack of uniformity would be less objectionable with regard to state law enforcement officials than federal law enforcement officials, because federalism principles suggest that the citizens of each state should decide for themselves the appropriate level of privacy, so long as a certain minimum level of privacy is provided. See Johnson v. Louisiana, 406 U.S. 356, 376 (1972) (Powell, J., concurring); New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“ [I]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”); Felix Frankfurter, The Public and its Government 49-51 (1930); Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1251 (1978). See generally LaFave & Israel, supra note 26, § 2.5(f), at 64-65, § 2.10, at 94-95, 98. Second, there would be uncertainty about exactly what police conduct would require a warrant, particularly if custom as well as statute could be used to establish a reasonable expectation of privacy. Such uncertainty would be more troublesome in the Fourth Amendment area than it has been under the Due Process Clause, because government officials who intrude upon privacy will likely be less familiar with state law and custom than government officials who deprive others of property. The expectations accorded constitutional protection by the Fifth Amendment are created, controlled by, or at least familiar to government officials whose decisions arguably deprive people of property. For instance, those who discharge government employees surely know the contractual rights and informal understandings governing employees' continued tenure. Similarly, prison administrators who deprive inmates of privileges are aware of informal understandings governing retention of those privileges. Law enforcement officers, particularly federal law enforcement officers, would neither create nor control the expectations of privacy-such expectations would be created either by state authorities or, worse, by custom. Nor would federal law enforcement officers necessarily become fully familiar with local laws and customs. Perhaps this uncertainty could be ameliorated by allowing only state law to prescribe the scope of privacy. Presumably state law would provide proof that society (i.e., the citizenry) views a particular expectation of privacy as reasonable.

[FN128]. Indeed, the press is sometimes equated with those who are less favored than the general public. In Food Lion, for example, the press was essentially equated with competitors, who may have less of a right to spy on a business than the general public. See Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1224 (M.D.N.C. 1996). If a consumer decided to get a job at Food Lion and wear a hidden camera and advise fellow customers of the conditions at Food Lion, he would probably not be liable for damages under North Carolina's unfair business practices act. See infra text accompanying note 399.

[FN129]. Technically, the police do not enjoy most favored nation status. The government cannot step into the shoes of some private parties. For instance, the government cannot gain access to a homeowner's study simply because family members enjoy such access. (Of course, law enforcement officers probably can gain access if a resident family member consents to such entry.)

[FN130]. See United States v. Miller, 425 U.S. 435, 440-45 (1976).

[FN131]. See, e.g., Zimmerman v. Wilson, 81 F.2d 847, 849 (3d Cir. 1936); Missouri ex rel. Clemens v. Witthaus, 228 S.W.2d 4, 10 (Mo. 1950); Brex v. Smith, 146 A. 34, 36-37 (N.J. Ch. 1929); see also Restatement (Second) of Torts § 652B cmt. b, illus. 4 (1996); Elder, supra note 47, § 5.3; Cunningham, supra note 79, at 579 n.231 (indicating that banks had a duty of confidentiality with respect to banking information even prior to the federal statute). See generally Wade, supra note 39, at 319 & n.85. [FN132]. See supra notes 85-89 and accompanying text. Actually there probably are different levels of access to some of the institutions involved in the press access cases. Penal institutions presumably accord preferred access to vendors, visiting committees, and friends and relatives of inmates. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 n.11 (1980) (plurality opinion); Houchins v. KQED, Inc., 438 U.S. 1, 12-13 & n.6 (1978); Saxbe v. Washington Post Co., 417 U.S. 843, 849 (1974) (equating press with the general public rather than “a lawyer, clergyman, relative, or friend” of an inmate who can be given preferred access to the inmate).

[FN133]. See Richmond Newspapers, Inc., 448 U.S. at 581; Houchins, 438 U.S. at 16; Saxbe, 417 U.S. at 835.

[FN134]. See infra notes 243-44 and accompanying text.

[FN135]. Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971).

[FN136]. Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1224 (M.D.N.C. 1996).

[FN137]. 526 N.W.2d 402, 405 (Minn. Ct. App. 1995).

[FN138]. Dietemann, Food Lion, and Copeland could all be anomalies. Maybe the Dietemann court would have reached the same conclusion if government agents had been involved. Indeed, there was some governmental involvement in Dietemann. Law enforcement officials had, like the defendant journalists, entered Dietemann's house pretending to be potential patrons. See Dietemann, 449 F.2d at 246. Food Lion may be reversed on appeal or disregarded by other courts.

[FN139]. 343 U.S. 747 (1952).

[FN140]. 385 U.S. 293 (1966).

[FN141]. 401 U.S. 745 (1971) (plurality opinion).

[FN142]. See id. at 748-54; Hoffa, 385 U.S. at 300-05; On Lee, 343 U.S. at 748-53.

[FN143]. See Dietemann, 449 F.2d at 246. In their undercover operation however, the police had made audio recordings of their interaction with the plaintiff, but had not taken any photographs. See id.

[FN144]. I am including the statutory unfair trade practice claim as a business tort. See supra notes 57-58 and accompanying text.

[FN145]. See Dow Chem. Co. v. United States, 476 U.S. 227, 232 (1986).

[FN146]. The different attitudes toward media and law enforcement undercover operations are also evident in rulings regarding undercover operatives' use of tape recorders to corroborate conversations. When law enforcement agents use a tape recorder, courts often uphold such conduct, reasoning that no one has a right to rely on the undercover officer's bad memory. See, e.g., White, 401 U.S. at 751; Lopez v. United States, 373 U.S. 427, 439-40 (1963); see also Standards Relating to Electronic Surveillance §§ 4.1, 4.2 commentary at 124. But see Alaska v. Glass, 583 P.2d 872, 881 (Alaska 1978); Michigan v. Beavers, 227 N.W.2d 511, 516 (Mich. 1975), overruled by Michigan v. Collins, 475 N.W.2d 684, 685 (Mich. 1991). However, when reporters argue that they must use tape recorders to corroborate statements, the courts have stated that the press has no right to corroborate information it acquires. See, e.g., Dietemann, 449 F.2d at 249; Shevin v. Sunbeam Television Corp., 351 So. 2d 723, 727 (Fla. 1977); see also Sigma Delta Chi v. Speaker, Md. House of Delegates, 310 A. 2d 156 (Md. 1973).

[FN147]. See LaFave & Scott, supra note 32, § 5.10(d). Indeed, New York explicitly recognizes such a defense. See N.Y. Penal Law § 35.05(1) (McKinney 1998). For a more cautious view, see United States v. Archer, 486 F.2d 670, 676-77 (2d Cir. 1973); Dix, supra note 9, at 284-86. The FBI undercover regulations provide a procedure for obtaining approval to engage in illegal activities. See Final Report, supra note 10, at 47 (discussing the Attorney General's Guidelines on FBI Use of Informants and Confidential Sources); see also Seattle, Wash., Ordinance 108333, § 23(d) (July 2, 1979), reprinted in Legislative Charter for the FBI: Hearings on H.R. 5030 Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 96th Cong. 53, at 70-71 (1980) [hereinafter Charter for the FBI ].

[FN148]. See H. Eugene Goodwin, Groping for Ethics in Journalism 150 (2d ed. 1987) (noting that undercover reporter was not prosecuted for paying cash for illegally prescribed drugs because he lacked criminal intent). This distinction between the positions of law enforcement officers and journalists is also illustrated by the results of a recent interaction between an undercover journalist and an undercover FBI agent. See, e.g., Neil A. Lewis, Radio Writer Pleads Guilty in Child Pornography Case, N.Y. Times, July 7, 1998, at A10 (reporting that journalist was prosecuted for trading images of underage girls allegedly as a part of an undercover operation investigating child pornography, while the undercover FBI agent who “caught” the journalist was not prosecuted).

[FN149]. While law enforcement agencies apparently do not generally acknowledge engaging in such practices, studies and anecdotal evidence suggest that the practice does indeed exist. See, e.g., Kenneth Culp Davis, Police Discretion 31 (1975); Marx, supra note 1, at 155; Peter Reuter, Licensing Criminals: Police and Informants, in ABSCAM Ethics, supra note 10, at 100, 102-07 (citing studies and anecdotal evidence); Carey Goldberg, Boston Trial's Troublesome Crux: How to Handle Informers' Crimes, N.Y. Times, Mar. 13, 1999, at A1.

[FN150]. See, e.g., FBI Undercover Operations: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 100th Cong. 35-36 (1988) [hereinafter FBI Undercover Operations ] (statement of Floyd I. Clarke) (stating that at one point in Operation Greylord, the FBI had a judge cooperating with them as part of their fictional scenario); James S. Kakalik & Sorrel Wildhorn, The Private Police: Security and Danger 208 (1977).

[FN151]. See David Kocieniewski, In New York City Drug War, Risky Tactics and Casualties, N.Y. Times, Jan. 21, 1998, at A2.

[FN152]. See Russ W. Baker, Truth, Lies, and Videotape: PrimeTime Live and the Hidden Camera, Colum. Journalism Rev., July-Aug. 1993, at 25, 26.

[FN153]. In addition, journalists appear more willing than law enforcement officials to openly debate the ethics of undercover operations.

[FN154]. The Chicago Sun-Times purchased and operated a bar to detect corruption among various inspectors employed by the City of Chicago. See Zay N. Smith & Pamela Zekman, The Mirage (1979); Zay N. Smith & Pamela Zekman, The Mirage Takes Shape, Colum. Journalism Rev., Sept./Oct. 1979, at 51; see also Goodwin, supra note 148, at 135-36.

[FN155]. See PrimeTime Live: Hidden Cameras/Hard Choices (ABC television broadcast, Feb. 12, 1997); see also Lori Keeton, Note, What Is Really Rotten in the Food Lion Case: Chilling the Media's Unethical Newsgathering Techniques, 49 Fla. L. Rev. 111, 115 (1997). [FN156]. For a description of the ABSCAM operation, see Final Report, supra note 10. For a description of Operation Greylord, see FBI Undercover Operations, supra note 150, at 16-17; see also United States v. Murphy, 768 F.2d 1518, 1527 (1985).

[FN157]. Perhaps law enforcement receives more favorable treatment than the media because courts dislike the targets of law enforcement operations more than they dislike the targets of media undercover operations. Targets of law enforcement activity are typically engaged in activity that has little legitimacy or is physically harmful to others. Media undercover operations may be more focused upon legitimate activities that may on occasion cross the line of legality and do not involve direct, immediate threats to physical security. In addition, the socio-economic status of the targets of each institutions' undercover activities may differ.

[FN158]. 408 U.S. 665 (1972).

[FN159]. See Dow Chem. Co. v. United States, 476 U.S. 227, 232 (1986) (explaining that Fourth Amendment does not incorporate the law of unfair competition); Oliver v. United States, 466 U.S. 170, 183-84 & n.15 (1984) (declaring that law of trespass confers protections from intrusion broader than the protections offered by the Fourth Amendment); On Lee v. United States, 343 U.S. 747, 752 (1952) (same); Dietemann v. Time, Inc., 449 F.2d 245, 249 n.3 (9th Cir. 1971) (“ [W]e have no occasion to consider the impact of the Fourth and Fourteenth Amendments on the relationship between the exclusionary rules in criminal cases and substantive law in a private tort action.”); see also supra note 54. Similarly, the Fourth Amendment does not incorporate standards of privacy set forth in administrative regulations. See United States v. Caceres, 440 U.S. 741, 755-57 (1979).

[FN160]. See On Lee, 343 U.S. at 752; McGuire v. United States, 273 U.S. 95, 98-100 (1927).

[FN161]. See 28 U.S.C. § 2680 (1994).

[FN162]. See Federal Employees Liability Reform and Tort Compensation (Westfall) Act of 1988, Pub. L. No. 100-694, § 5, 102 Stat. 4563, 4564 (codified at 28 U.S.C. § 2679(b) (1994)).

[FN163]. Indeed, an injunction against publishing such information would surely constitute an unconstitutional prior restraint. See New York Times Co. v. United States, 403 U.S. 713 (1971) (the “Pentagon Papers” Case); CBS Inc. v. Davis, 510 U.S. 1315, 1318 (Blackmun, Circuit Justice 1994); In re King World Prod., Inc., 898 F.2d 56, 59-60 (6th Cir. 1990).

[FN164]. There should be no liability resulting from publication of information obtained by prohibited means. See Food Lion, Inc. v. Capital Cities/ABC, Inc., 964 F. Supp. 956, 962, 966 (M.D.N.C. 1997) (post-trial Food Lion opinion explaining court's direction to jury regarding damages); see also James E. King & Frederick T. Muto, Compensatory Damages for Newsgatherer Torts: Toward a Workable Standard, 14 U.C. Davis L. Rev. 919, 948-53 (1981) (advocating a nuanced rule). But see John J. Walsh et al., Media Misbehavior and the Wages of Sin: The Constitutionality of Consequen- tial Damages for Publication of Ill-Gotten Information, 4 Wm. & Mary Bill Rts. J. 1111, 1111-12 (1996) (arguing that generally applicable damages principles should apply). See generally Marc A. Franklin & David A. Anderson, Mass Media Law: Cases and Materials 412-13 (5th ed. 1995) (discussing Dietemann, Dodd, Prahl, and Costlow v. Cusimano, 311 N.Y.S.2d 92 (App. Div. 1970)).

[FN165]. Congress has waived the federal government's sovereign immunity with regard to claims for injunctive or declaratory relief. See 5 U.S.C. § 702 (1994); Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1555 (11th Cir. 1985); Estate of Watson v. Blumenthal, 586 F.2d 925, 932 (2d Cir. 1978). State courts have generally held that the doctrine of sovereign immunity does not limit the grant of injunctive or declaratory relief against state governments. See Civil Actions Against State Government § 2.34, at 74 (Wesley H. Winborne ed., 1982). [FN166]. See Richardson v. McKnight, 521 U.S. 399, 117 S. Ct. 2100, 2108 (1997); Wyatt v. Cole, 504 U.S. 158, 165-69 (1992). See generally Boyle v. United Techs. Corp., 487 U.S. 500 (1988) (setting forth the bounds of defense contractor's defense to common law tort claims arising from alleged defects in government-mandated design of military equipment). In Richardson, the Court held that private companies operating prisons are not protected by sovereign immunity. The Court left open the question of whether an individual who cooperated with the government on a particular occasion could be covered by sovereign immunity.

[FN167]. 287 U.S. 435 (1932).

[FN168]. See id. at 441-42 (dicta); see also United States v. Russell, 411 U.S. 423, 434 (1973).

[FN169]. See Sorrells, 287 U.S. at 441-42.

[FN170]. 408 U.S. 665 (1972).

[FN171]. See id. at 697-98; see also McCray v. Illinois, 386 U.S. 300, 308-313 (1967) (identifying undercover agents at suppression hearing); LaFave & Israel, supra note 26, § 23.3(f), at 1028-29 (recognizing “informer's privilege” as necessary to further the public's interest in effective law enforcement, but limiting the scope of the privilege so as not to contravene “fundamental fairness”); 8 John Henry Wigmore, Evidence in Trials at Common Law § 2374, at 761-74 (John T. McMaughton rev. 1961).

[FN172]. See LaFave & Israel, supra note 26, § 8.6, at 398-400.

[FN173]. 429 U.S. 545, 550-59 (1977).

[FN174]. See id. at 557-59. Ordinarily, a law enforcement agent's attendance at such a meeting would violate the Sixth Amendment right to counsel-the ability to speak with counsel confidentially being a crucial aspect of that right. See, e.g., Coplon v. United States, 191 F.2d 749, 757-59 (D.C. Cir. 1951); see also Hoffa v. United States, 385 U.S. 293, 306-07 (1966) (assuming Coplon was rightly decided). See generally Weatherford, 429 U.S. at 563 (Marshall, J., dissenting) (citing Court of Appeals precedent).

[FN175]. Weatherford, 429 U.S. at 557.

[FN176]. Id.

[FN177]. Statements in several cases express the judicial view of the crucial nature of undercover operations. See Hoffa, 385 U.S. at 311 (“ ‘Courts have countenanced the use of informers from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely upon them or upon accomplices because the criminals will almost certainly proceed covertly...”’) (quoting United States v. Dennis, 183 F.2d 201, 224 (2d Cir. 1950) (Learned Hand, J.), aff'd, 341 U.S. 494 (1951); Lewis v. United States, 385 U.S. 206, 210 (1966); Andrews v. United States, 162 U.S. 420, 423 (1896); Grimm v. United States, 156 U.S. 604, 610 (1895); see also supra note 8.

[FN178]. See Dietemann v. Time, Inc., 449 F.2d 245, 252 (9th Cir. 1971) (Carter, J., concurring in part, dissenting in part) (“The primary interest that cuts [toward police being immune from liability for intrusion while the press is not] is that of society in discovering and successfully prosecuting criminal activities.”). [FN179]. See, e.g., Sacramento County Deputy Sheriffs' Ass'n v. County of Sacramento, 59 Cal. Rptr. 2d 834, 837 (Cal. Ct. App. 1996) (videotaping of county jail office to determine the identity of a thief); Dana Hawkins, A Bloody Mess at One Federal Lab, U.S. News & World Rep., June 23, 1997, at 26 (reporting on surreptitious testing of workers at a lab administered for the U.S. Department of Energy).

[FN180]. This was a concern of Samuel D. Warren and Louis D. Brandeis as expressed in their seminal article proposing recognition of a common law right to privacy. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 196 (1890); see also Desnick v. American Broad. Co., 44 F.3d 1345, 1355 (7th Cir. 1995) (“Today's ‘tabloid’ style investigative television reportage, conducted by networks desperate for viewers in an increasingly competitive television market, constitutes-although it is often shrill, one-sided, and offensive, and sometimes defamatory-an important part of that market.”); Wolfson v. Lewis, 924 F. Supp. 1413, 1418 (E.D. Pa. 1995) (“ [T]he television market for scandal and sensationalism has encouraged T.V. journalists to engage in forms of newsgathering that may bring about a clash between the right to privacy and freedom of the press.”); McClurg, supra note 40, at 1017 (discussing popularity of newsmagazines featuring undercover stories and asserting that “the American public has proven to be an all too willing consumer of shocking, titillating, and voyeuristic entertainment”). Of course law enforcement is not immune from sensationalist tendencies. See Susan Heller Anderson & David W. Dunlap, New York Day by Day, N.Y. Times, July 10, 1986, at B3 (reporting an “undercover” operation by U. S. Senator Alfonse D'Amato and the U.S. Attorney in Manhattan, Rudolph W. Giuliani, to purchase crack to publicize the openness of crack sales in certain neighborhoods).

[FN181]. The popularity of the television show “Candid Camera” demonstrates this point. Indeed, though print journalists sometimes engage in undercover operations, the use of such techniques is far more prevalent among television journalists. See Black et al., supra note 2, at 124 (“Newspaper and magazine journalists also use hidden cameras for investigative reporting, but it is in the electronic media, where pictures are much more essential to storytelling, that most of the cases of hidden cameras take place.”); Susan Paterno, supra note 12, passim.

[FN182]. See Baker, supra note 152, at 25-26.

[FN183]. See Fallows, supra note 13, at 92-93, 114-15, 128, 144; Haynes Johnson, Sleepwalking Through History: America in the Reagan Years 143-44 (1991); Howard Kurtz, Media Circus: The Trouble with America's Newspapers, 144-45, 339-40 (1993); Steven D. Stark, Glued to the Set: The 60 Television Shows and Events That Made Us Who We Are Today 188-194 (1997) (attributing the trend in part to the success of the television news magazine “60 Minutes”); Doug Underwood, When MBAs Rule the Newsroom 59 (1993); Frank Rich, Prime Time Live, N.Y. Times, May 23, 1998, at A15 (noting “accelerating blurring of news and entertainment”).

[FN184]. Intrusions to benefit the person whose privacy has been invaded should be regarded particularly favorably. The intruder who intrudes to provide assistance-like the firefighter combating a conflagration or the police officer searching a house to determine whether the resident has been injured-should be regarded more favorably than those who intrude with an intent to injure, even if the injury is legitimate. See Restatement (Second) of Torts § 197 cmt. j (1964); see also Estate of Berthiaume v. Pratt, 365 A.2d 792, 796 (Me. 1976). Such a legitimate injury might be the exposure of some wrong done by the target of the intrusion.

[FN185]. See Shulman v. Group W Prods., Inc., 955 P.2d 469, 493 (Cal. 1998); Sacramento County Deputy Sheriffs' Ass'n v. County of Sacramento, 59 Cal. Rptr. 2d 834, 846 (Cal. Ct. App. 1996); Miller v. National Broad Co., 232 Cal. Rptr. 668, 679 (Cal. Ct. App. 1986); People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 895 P.2d 1269, 1282 (Nev. 1995); Keeton et al., supra note 41, § 117, at 856; Alfred Hill, Defamation and Privacy Under the First Amendment, 76 Colum. L. Rev. 1205, 1284 (1976) ( “ [A] continuous surveillance which is tortious when practiced by a creditor upon a debtor may not be tortious when practiced by media representatives in a situation where there is a significant public interest [in the discovery of the information sought].”). [FN186]. Of course, some use this approach to argue that one should have more of an expectation of privacy against government intrusion than against private intrusion. See Christopher Slobogin, Capacity to Contest a Search and Seizure: The Passing of Old Rules and Some Suggestions for New Ones, 18 Am. Crim. L. Rev. 387, 397 (1981); see also Dietemann, 449 F.2d at 252 (Carter, J., concurring in part and dissenting in part).

[FN187]. See United States v. Leon, 468 U.S. 897, 907-08 & n.6 (1984); Stone v. Powell, 428 U.S. 465, 489-94 (1976); Miranda v. Arizona, 384 U.S. 436, 539-43 (1966) (White, J., dissenting); Massiah v. United States, 377 U.S. 201, 207 (1964) (White, J., dissenting); The Federalist No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961) (“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed ; and in the next place oblige it to control itself.” (emphasis added)). The most basic function of any government is to provide for the security of the individual and of his property. These ends of society are served by the criminal laws which for the most part are aimed at the prevention of crime. Without the reasonably effective performance of the task of preventing private violence and retaliation, it is idle to talk about human dignity and civilized values. Miranda, 384 U.S. at 539 (White, J., dissenting). [FN188]. Several Bill of Rights provisions, including much of the Fourth, Fifth, Sixth, and Eighth Amendments, address criminal prosecution. The Fourth Amendment provides a special mechanism empowering government to conduct searches and seizures to further law enforcement.

[FN189]. Miller, 232 Cal. Rptr. at 684.

[FN190]. The Constitution does not make law enforcement or free speech paramount. The only preference accorded law enforcement arises with respect to searches. The Constitution does allow law enforcement to intrude, but does not contain an equivalent provision for the press. However, this apparent preference may merely reflect the fact that the Constitution limits only government behavior, and thus, the framers of the Constitution needed to provide only to the government extraordinary means to invade individual privacy (i.e., the warrant procedure).

[FN191]. See Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People 27, 75, 79 (1948); Cass R. Sunstein, Democracy and the Problem of Free Speech xvii, 18-22, 34-35, 37 (1993); Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245, 253-55; Bernard W. Bell, Legislative History Without Legislative Intent: A Public Justification Approach to Statutory Interpretation, 60 Ohio St. L. J. 1, 14-16 (1999); see also Saxbe v. Washington Post Co., 417 U.S. 843, 860, 862-64 (Powell, J., dissenting); Branzburg v. Hayes, 408 U.S. 665, 726-27 (1972) (Stewart, J., dissenting).

[FN192]. 9 The Writings of James Madison 103 (Gaillard Hunt ed., 1910), quoted in, Board of Educ. v. Pico, 457 U.S. 853, 867 (1982) (plurality opinion); see also Press-Enter. Co. v. Superior Court, 478 U.S. 1, 18 (1986) (Stevens, J., dissenting).

[FN193]. Vincent Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Found. Res. J. 523 passim ; see also Stewart, supra note 83, at 631.

[FN194]. See Blasi, supra note 193, at 529-44; Stewart, supra note 83, at 634-35.

[FN195]. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 764-65 (1976); Kent Greenawalt, Speech, Crime, and the Uses of Language 31-33 (1989); Steven H. Shiffrin, The First Amendment, Democracy, and Romance 52-53 (1990); Posner, supra note 18, at 394-95, 399-401. [FN196]. See Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103-04 (1979); Houchins v. KQED, Inc., 438 U.S. 1, 31-32, 35-38 (1978); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 586-87 (1980) (Brennan, J., concurring).

[FN197]. Indeed, speech is protected, even when it harms the victim of a crime, as long as the information was legally acquired. See Florida Star v. B.J.F., 491 U.S. 524, 536-41 (1989).

[FN198]. See FTC v. Cinderella Career & Finishing Sch., Inc., 404 F.2d 1308, 1313-14 (D.C. Cir. 1968); Ernest Gellhorn, Adverse Publicity by Administrative Agencies, 86 Harv. L. Rev. 1380, 1382-1419 (1973) (discussing agency use of publicity); Lars Noah, Administrative Arm-Twisting in the Shadow of Congressional Delegations of Authority, 1997 Wis. L. Rev. 873, 887-91; Ralph Vartabedian & Edwin Chen, FAA to Provide Safety Reports on the Internet, L.A. Times, January 30, 1997, at A1.

[FN199]. See Illinois v. Meyer, 680 N.E.2d 315, 318-19 (Ill. 1997); Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591, 631-32 (1996).

[FN200]. See Dienes et al., supra note 95, § 11-7(b)(3), at 416 & n.208 (criminal records); Lars Noah, The Imperative to Warn: Disentangling the “Right to Know” from the “Need to Know” About Consumer Product Hazards, 11 Yale J. on Reg. 293, 301-08 (1994).

[FN201]. See Doe v. Poritz, 662 A.2d 367, 376 (N.J. 1995); 140 Cong. Rec. S12,544-45 (daily ed. Aug. 25, 1994) (statement of Sen. Lautenberg); 140 Cong. Rec. H5612 (daily ed. July 13, 1994) (statement of Rep. Dunn).

[FN202]. See United States v. Brignoni-Ponce, 422 U.S. 873, 883 n.8 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 272-75 (1973); see also Delaware v. Prouse, 440 U.S. 648, 665 (1979) (Rehnquist, J., dissenting).

[FN203]. See O'Connor v. Ortega, 480 U.S. 709, 721-22 (1987) (plurality opinion).

[FN204]. The Supreme Court's actual holdings have quite probably outstripped this approach. Craig Bradly has enumerated over twenty exceptions to the warrant and probable cause requirements. See Bradley, supra note 116, at 1473-74. Given this variety of exceptions to the warrant and probable cause requirements, very few of the searches that police actually conduct need be made pursuant to a warrant. However, the types of warrantless searches that routinely produce evidence of criminality are nevertheless justified in significant part on bases other than the efficacy of the technique in revealing evidence. The Court has justified exceptions to the warrant requirement that allow such searches on the grounds that such searches are necessary to allow officers to ensure their own safety, to ensure that the police may maintain control over jails, and to help the police to protect themselves from false theft claims. See id. at 1473-74, 1496. For example, in practical terms, searches incident to arrest and pat-down searches during stop and frisk encounters produce much incriminating evidence, yet the efficacy of such techniques in securing evidence was not the primary justification upon which the Court relied in excepting such searches from the warrant requirement. See Chimel v. California, 395 U.S. 752, 764-65 (1969); Terry v. Ohio, 392 U.S. 1, 26-27, 29, 30-31 (1968).

[FN205]. Some defenders of undercover operations have argued that the warrant and individualized suspicion requirements, designed for conventional law enforcement techniques, cannot sensibly be applied to undercover operations. See Philip B. Heymann, Understanding Criminal Investigations, 22 Harv. J. on Legis. 315, 331-34 (1985); see also infra note 235. The Supreme Court has not relied upon such an argument.

[FN206]. See William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 Mich. L. Rev. 1016, 1041-42 (1995); see also Harold J. Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment, 74 Tex. L. Rev. 49, 51-53, 63-92 (1995) (suggesting that Fourth Amendment reasonableness extends to law enforcement publication of information); McClurg, supra note 40, at 1041-44 (relying on problems of dissemination to distinguish observing someone in a public place from photographing someone in a public place). But see Fried, supra note 21, at 490.

[FN207]. See Florida Star v. B.J.F., 491 U.S. 524, 540-41 (1989). But see id. at 549 (White, J., dissenting).

[FN208]. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1074-75 (1991); id. at 1052, 1057 (opinion of Kennedy, Marshall, Blackmun & Stevens, J.J.).

[FN209]. 467 U.S. 20 (1984).

[FN210]. See id. at 36-37.

[FN211]. See id. at 32-35; Robert C. Post, The Management of Speech: Discretion and Rights, 1984 S. Ct. Rev. 169, 187-89, 191; see In re Halkin, 598 F.2d 176, 206-07 (D.C. Cir. 1979) (Wilkey, J., dissenting).

[FN212]. 444 U.S. 507 (1980) (per curiam).

[FN213]. See id. at 509 n.3, 510-11, 513 n.8; Nowak & Rotunda, supra note 119, § 16.17, at 1027-28.

[FN214]. See In re Minor, 595 N.E.2d 1052, 1053-55 (Ill. 1992).

[FN215]. See Macon Tel. Publ'g Co. v. Tatum, 430 S.E.2d 18, 20-22 (Ga. Ct. App. 1993), rev'd, 436 S.E.2d 655 (Ga. 1993) (enforcing agreement not to publish made in exchange for access). Private parties can also, in effect, enforce limits on disclosure that they negotiate in providing special access to information. See Cohen v. Cowles Media Co., 501 U.S. 663, 665 (1991).

[FN216]. See Maclin, supra note 10, at 578, 634 (“When the Fourth Amendment was adopted in 1791, the unreasonable searches and seizures that preoccupied Americans primarily involved forcible intrusions into homes by officials under the authority of general warrants and writs of assistance.”); see also Olmstead v. United States, 277 U.S. 438, 471-76 (1928) (Brandeis, J., dissenting) (criticizing majority for failing to update its view of privacy protected by the Fourth Amendment in light of scientific inventions that enable government to intrude without physical invasion), overruled in part by Katz v. United States, 389 U.S. 347, 353 (1967). But see Cunningham, supra note 79, at 557-58; Panel Presentation: Intrusion of Technology into Privacy, in Annual Judicial Conference: Second Judicial Circuit of the United States, 130 F.R.D. 161, 189 (1989) (remarks of Bernard Bell) [hereinafter Panel Presentation].

[FN217]. See Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at “Understandings Recognized and Permitted by Society,” 42 Duke L.J. 727, 774 (1993).

[FN218]. See id. Survey participants ranked 50 activities on a scale from 0 to 100, with 0 representing unintrusive activities and 100 representing extremely intrusive activities. See id. at 736. “Perusing bank records” ranked 12th most intrusive (71.60); “secretary as undercover” ranked 16th most intrusive (68.98); “chauffeur as undercover” ranked 19th most intrusive (67.56); “ [s]earch of cornfields... [posted with] ‘No Trespassing’ signs” ranked 29th (56.58), “ [u]sing a beeper to track car” ranked 32nd (54.46), “ [g]oing through garbage” ranked 37th (44.95), and “ [f]lying 400 yards above [fenced-in] backyard” ranked 40th (40.32). Id. at 738. Admittedly, the researchers did not select a random sample. The 217-person sample consisted of groups of law students from the University of Florida, the University of Southern California, and an Australian university, as well as a group of citizens from Gainesville, Florida. See id. at 737. Moreover, the rankings are only relative. We do not know how intrusive an action has to be on a scale of 0-100 before it is viewed as invading a reasonable expectation of privacy (and should thus be prohibited absent a showing of probable cause). However, the relative rankings are nevertheless quite instructive. As Slobogin and Schumacher note, the survey participants viewed the perusal of bank records as more intrusive than many of the actions that the Supreme Court has found to violate a reasonable expectation of privacy. See id. at 738-40. Perhaps more relevant to this article, the respondents viewed undercover operations involving use of government agents as the secretary or chauffeur of a target as at least as intrusive as opening the trunk of a car parked on a public street to examine the contents of the trunk, “ [g]oing through drawers at office,” and rummaging through a traveler's suitcase at an airport, all of which the Court has found to violate reasonable expectations of privacy. Id. at 738-42.

[FN219]. See id. at 738-40.

[FN220]. See, e.g., Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, § 301, 100 Stat. 1848, 1868-72 (codified as amended at 18 U.S.C. §§ 3121-3127 (1994 & Supp. III 1997)); Right to Financial Privacy Act of 1978, Pub. L. No. 95-630, 92 Stat. 3697 (codified as amended at 12 U.S.C. §§ 3401-3422 (1994)); see also Privacy Protection Act of 1980, Pub. L. No. 96-440, 94 Stat. 1879 (codified at 42 U.S.C. § 2000aa (1994 & Supp. II 1996)) (Congressional response to Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (allowing newsroom searches)); Franklin & Anderson, supra note 164, at 526-27 (describing state statutory response to Zurcher ). See generally David M. O'Brien, Privacy, Law, and Public Policy 203-04 (1979).

[FN221]. See United States v. Miller, 425 U.S. 435, 440-45 (1976).

[FN222]. 92 Stat. 3697 (codified as amended at 12 U.S.C. §§ 3401-3422). For a description of the Act's requirements, see infra text accompanying notes 344-52.

[FN223]. 100 Stat. 1848. To obtain authorization for a pen register or trap and trace devices, an attorney for the federal agency must apply to a federal court of competent jurisdiction. See 18 U.S.C. § 3122(a) (1994). The application must identify the law enforcement agency conducting the investigation, and the attorney must certify that “the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.” Id. § 3122(b). Upon such certification, the court is to grant the application and issue an order, covering a period of no more than sixty days, setting forth the owner of the line to which the device is attached, the identity of the subject of the investigation (if known), and the offense that the law enforcement agency expects to learn about through the pen register or trap and trace device. See id. § 3123. The statute contains similar provisions allowing state law enforcement officers to obtain authorization to use such devices upon application to state courts of competent jurisdiction. See id. § 3122(a)(2). With the exception of the provider of telephone services, no private person may use a pen register or trap and trace device. See id. § 3123. Though the statute requires little or no judicial scrutiny of applications for pen registers and trap and trace devices, law enforcement officials must at least specify the nature of the offense being investigated, and commit themselves to their basis for using such devices before they employ them. Forcing police to state their basis for intruding before a search, rather than after (when their statement of the basis for intrusion might be influenced by what they have found), is at least one purpose served by the warrant requirement. See United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976); Whiteley v. Warden, 401 U.S. 560, 565 n.8 (1971); 2 LaFave, supra note 26, § 4.3(a), at 458-59, § 4.3(b), at 465, § 4.3(d), at 472.

[FN224]. With respect to undercover officers wearing radio transmitters, the Federal Communications Commission is more solicitous toward privacy than are the courts. See Middleton, supra note 64, at 313, 316-17; see also infra notes 353-56 and accompanying text (describing the Public Health Service's prohibition on the use of undercover techniques against patients).

[FN225]. See supra notes 123-27 and accompanying text. [FN226]. See Massiah v. United States, 377 U.S. 201 (1964) (prohibiting informant from taping conversation with indicted individual). See generally Dix, supra note 9, at 211-12, 221-24, 236-41 (discussing undercover infiltration of close personal and professional relationships). Indeed, Gary Marx has noted a correlation between the limitations on the use of overt after-the-crime investigative techniques, by the imposition of requirements like the Miranda warning, and the use of undercover means to anticipate crimes. Marx, supra note 1, at 47. He asserts that European police forces wield much greater overt investigative powers than American police forces and tend to use undercover techniques less. See id. Moreover, the use of undercover techniques within the United States has increased since the expansion of criminal procedure rights that have limited law enforcement's overt investigative powers. See id. Thus, in a real sense, law enforcement officers may use deceit as a substitute for now- unconstitutional open privacy intrusions. See id.

[FN227]. See United States v. Baldwin, 621 F.2d 251, 252 (6th Cir. 1980) (undercover agent spent six months as defendant's chauffeur); FBI Undercover Operations, supra note 10, at 6; Final Report, supra note 10, at 381-82; Marx, supra note 1, at 128, 149 (agent sleeping with a member of a Maoist organization to learn more about her and organization's secrets); Maclin, supra note 10, at 618-19, 628. As Congressman Don Edwards has noted: I think it's very clear also to anybody who has read the Constitution, that you have immense Fourth Amendment problems where you put a secret agent into somebody's life. It is probably more intrusive than tapping the person's telephone to have the agent practically living with the subject or with the organization that is the subject as part of the family.

FBI Undercover Operations, supra note 150, at 136. [FN228]. See Slogobin, supra note 70, at 103; Deni Elliott & Charles Culver, Defining and Analyzing Journalistic Deception, 7 J. Mass Media Ethics 69, 70 (1992); Ferdinand Schoeman, Undercover Operations: Some Moral Questions About S.804, Crim. Just. Ethics, Summer/Fall 1986, at 16, 18; see also Panel Presentation, supra note 216, at 193-94 (remarks of Professor Kathleen Sullivan). Indeed, courts have recognized the potential for undercover operations to undermine some confidential relationships, and have established some limitations on government undercover operations so as to protect those relationships. Thus, law enforcement agents cannot use an informant to befriend a criminal defendant who has already been charged with a crime. See Massiah, 377 U.S. at 202-03, 206-07. Furthermore, police cannot troll Alcoholics Anonymous meetings to determine whether the participants continue to engage in unlawful substance abuse. See Washington v. Lively, 921 P.2d 1035, 1046, 1048-49 (Wash. 1996). The courts would likely exhibit similar disapproval of a government agent pretending to be a target's lawyer or doctor. But see United States v. Aguilar, 883 F.2d 662, 696-705 (9th Cir. 1989) (holding that undercover agents attending and recording church meetings did not need a warrant). See generally Schoeman, supra, at 19-20; Michael F. McCarthy, Note, Expanded Fourth Amendment Coverage: Protection from Government Infiltration of Churches, 3 Geo. Immigr. L.J. 163 (1989). Several commentators have explicitly suggested that courts employ a different, higher level of scrutiny in evaluating undercover operations that require the investigator to establish an intimate relationship with the target of the investigation. See e.g., Cunningham, supra note 79, at 576-77; William J. Stuntz, Waiving Rights in Criminal Procedure, 75 Va. L. Rev. 761, 791-94 (1989). See generally Marx, supra note 1, at 147-52.

[FN229]. See Slobogin, supra note 70, at 104.

[FN230]. See Payton v. New York, 445 U.S. 573, 583 & n.21 (1980); Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); 3 William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 1494-1508 (1990) (unpublished Ph.D. dissertation, University of Michigan) (on file with the University of Michigan Dissertation Information Service).

[FN231]. See FBI Undercover Operations, supra note 150, at 6; Marx, supra note 1, at 100, 149; Cunningham, supra note 79, at 575 & n.210 (asserting that infiltration and spying can have a greater impact on one's sense of security and spontaneity than wiretapping); Slobogin, supra note 70, at 104 (stating that undercover police work “increases distrust of everyone, since anyone could be a government agent”).

[FN232]. The constitutional right to freedom of association surely establishes these private relationships as valuble ones meriting some respect from the government. See Board of Dirs. of Rotary Int'l v. Rotary Club, 481 U.S. 537, 545-46 (1987); Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984); NAACP v. Alabama, 357 U.S. 449, 460-61 (1958). Courts have upheld associational rights even when recognition of those rights frustrates the attainment of goals of the highest order, such as ending racial and gender discrimination. Indeed, some have raised the threat undercover operations pose to freedom of association as an argument for holding the use of undercover techniques violative of the Fourth Amendment. See United States v. White, 401 U.S. 745, 762-65 (1971) (Douglas, J., dissenting); id. at 787-89 (Harlan, J., dissenting); United States v. Jannotti, 673 F.2d 578, 612-13 (3d Cir. 1982) (Aldisert, J., dissenting); FBI Undercover Guidelines: Oversight Hearings Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 97th Cong. 4, 47 (1981) [hereinafter Oversight Hearings ] (testimony of Goeffrey R. Stone and Gary T. Marx).

[FN233]. Some have proposed that courts uphold only those undercover operations in which the undercover agent states at the beginning of his relationship with the target that he wishes to engage in unlawful activity. See 3 LaFave, supra note 26, § 8.2(m), at 701 & n.300, 703; Sanford Levinson, Under Cover: The Hidden Costs of Infiltration, in ABSCAM Ethics, supra note 10, at 43, 55; Stuntz, supra note 228, at 791-94; James B. White, The Fourth Amendment as a Way of Talking About People: A Study of Robinson and Matlock, 1974 Sup. Ct. Rev. 165, 230. See generally Richard E. Warner, Comment, Governmental Deception in Consent Searches, 34 U. Miami L. Rev. 57 (1979). One district court judge adopted a similar standard. See United States v. Kelly, 539 F. Supp. 363, 376-77 (D.D.C. 1982) (“If after an illegal offer is made, the subject rejects it in any fashion, the government cannot press on.”), rev'd, 707 F.2d 1460 (D.C. Cir. 1983). Of course, the rule may frustrate legitimate investigation. Sophisticated criminals who become aware of such a rule might, for instance, initially reject the offer to engage in an illegal transaction or express disapproval of illegal activity, but offer to continue the relationship nevertheless. At this point the undercover law enforcement officer might have to withdraw from the relationship, while a person who is really interested in illegal activity need not. See United States v. Myers, 527 F. Supp. 1206, 1231-32 (E.D.N.Y. 1981), aff'd, 692 F.2d 823, 860 (2d Cir. 1982). Moreover, such a proposal would make it difficult to pretend to be a potential victim or client. Under such an approach neither a law enforcement officer nor a journalist could pose as a person looking for housing, needing a taxi ride, or needing a furnace repaired, to determine whether such service providers are honest. In addition, such a test would fail in the media context. Legitimate journalistic inquiries encompass more than illegal activities. Thus, if a food store complied with all laws, but engaged in relatively unsanitary or careless practices, the store's practices would be matters of legitimate journalistic inquiry even if not of legitimate law enforcement concern.

[FN234]. See Amsterdam, supra note 106, at 403-04 (“The ultimate question, plainly, is a value judgment.... And it is a perfectly impossible question for the Supreme Court to put forth as a test of fourth amendment coverage.”). The difficulty of creating judicially administrable standards is sometimes explicitly, and sometimes implicitly, a reason for courts to leave particular practices unregulated. See Baker v. Carr, 369 U.S. 186, 217 (1962) (in determining whether an issue raises a non-justiciable “political question,” one of the six factors a court must consider is the “lack of judicially discoverable and manageable standards for resolving” the issue).

[FN235]. Establishing standards for undercover operators is particularly troublesome, in part due to the fluidity of many undercover situations. Even police officials supervising undercover operations have trouble drawing lines and providing firm instructions given the necessary fluidity of the situation. See Oversight Hearings, supra note 232, at 83-84, 106 (testimony of Associate Attorney General Paul R. Michel) (explaining that requiring probable cause or reasonable suspicion before an undercover officer offers a person an opportunity to commit a crime is unworkable because undercover investigations “are inherently and unavoidably evolutionary in nature”); Marx, supra note 1, at 195; Goldwasser, supra note 10, at 128-29.

[FN236]. See supra text accompanying notes 70-105. See generally Misner, supra note 68. [FN237]. See, e.g., Dienes et al., supra note 95, § 12-2, at 429-40, § 12-4(c)(2), at 463-66; People for the Ethical Treatment of Animals v. Bobby Berosini Ltd., 895 P.2d 1269, 1280-81 & n.20 (Nev. 1995). The same “assumption of the risk” approach used in Fourth Amendment analysis is used in adjudicating common law “intrusion” claims. See McClurg, supra note 40, at 1036-42.

[FN238]. See Florida v. Riley, 488 U.S. 445, 451 (1989); Dow Chem. Co. v. United States, 476 U.S. 227, 236-37, 239 (1986); California v. Ciraolo, 476 U.S. 207, 212-13 (1986).

[FN239]. California v. Greenwood, 486 U.S. 35, 40 (1988). The majority found it irrelevant that the citizenry, while recognizing that strangers could, in fact, search a homeowner's trash, believed the practice to be an unwarranted invasion of privacy. Justice Brennan pointed to the public disapproval of reporters' search of Henry Kissinger's trash (which the majority had cited to show that any expectation of privacy in trash bags was unreasonable), and various city ordinances making searching through trash illegal. See id. at 51-52 (Brennan, J., dissenting). The majority did not respond to those arguments.

[FN240]. See Cunningham, supra note 79, at 579, 581-82; Donovan, supra note 10, at 353, 368-69, 374-75; Tomkovicz, supra note 78, at 652.

[FN241]. Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978) (plurality opinion). The Court continued: Because the Constitution affords no guidelines, absent statutory standards, hundreds of judges would, under the Court of Appeals' approach, be at large to fashion ad hoc standards, in individual cases, according to their own ideas of what seems “desirable” or “expedient.”

Id. On this basis, the Court concluded that deciding the terms of access to penal institutions “is a question of policy,” and “a legislative task which the Constitution has left to the political processes.” Id. at 12. [FN242]. See supra notes 70-105 and accompanying text.

[FN243]. See Hoffa v. United States, 385 U.S. 293, 303 (1966) (“ ‘The risk of being... betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.”’ (quoting Lopez v. United States, 373 U.S. 427, 465 (1963) (Brennan, J., dissenting)).

[FN244]. See United States v. White, 401 U.S. 745 (1971) (plurality opinion); Hoffa, 385 U.S. 293; Lewis v. United States, 385 U.S. 206 (1966); On Lee v. United States, 343 U.S. 747 (1952); 3 LaFave, supra note 26, § 8.2(m), at 700 n. 298, 703-05; LaFave & Israel, supra note 26, § 3.10(c), at 237-39; Goldwasser, supra note 10, at 82-86; Slobogin, supra note 70, at 103.

[FN245]. See Tribe, supra note 21, § 16-2, at 1440; Sager, supra note 127, at 1215-18.

[FN246]. See Federal Power Comm'n v. New England Power Co., 415 U.S. 345, 352-53 (1974) (Marshall, J., concurring); Ely, supra note 68, at 131-33; Daniel A. Farber & Philip P. Frickey, Law and Public Choice: A Critical Introduction 78-79 (1991) (asserting that while there have been only two reversals for violation of delegation doctrine, “it would be a mistake to view the doctrine as wholly moribund”); Tribe, supra note 21, § 8-7, at 582-84, § 16-2, at 1440; Bernard W. Bell, Dead Again: The Nondelegation Doctrine, the Rules/Standards Dilemma, and the Line-Item Veto, 44 Vill. L. Rev. (forthcoming Aug. 1999). The framers of the Constitution, in allocating the legislative power to Congress, presumably intended Congress to make the important decisions about the legal rules that would govern citizens' conduct. For a more general discussion of the non-delegation doctrine, see David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (1993). [FN247]. See Mark Tushnet, Red, White and Blue: A Critical Analysis of Constitutional Law 201-09 (1988); Richard H. Fallon, Jr., Foreword: Implementing the Constitution, 111 Harv. L. Rev. 54, 62-67 (1997); Sager, supra note 127; Lawrence Gene Sager, Insular Majorities Unabated: Warth v. Seldin and City of Eastlake v. Forest City Enterprises, Inc., 91 Harv. L. Rev. 1373, 1412-14 (1978). Perhaps norms protecting privacy from the official use of deceptive practices should be viewed as not merely under enforced, but un enforced.

[FN248]. See Farber & Frickey, supra note 246, at 118-131.

[FN249]. 426 U.S. 88 (1976).

[FN250]. See id. at 90 & n.1.

[FN251]. Id. at 101.

[FN252]. See id. at 101 n.21.

[FN253]. Id. at 103-04.

[FN254]. See id. at 105.

[FN255]. See id. at 103-05, 114-18.

[FN256]. See id. at 105-14.

[FN257]. See id. at 104-05, 114-15.

[FN258]. Id. at 116.

[FN259]. The Court had already held that classifications based on alienage merit heightened scrutiny, see, e.g., Sugarman v. Dougall, 413 U.S. 634, 646 (1973) (holding that a state could not bar noncitizens from state employment); In re Griffiths, 413 U.S. 717, 718 (1973) (holding that a state could not bar noncitizens from the practice of law), yet the Court was evidently not prepared to engage in the same rigorous scrutiny of presidential and congressional alienage classifications, because of Congress' plenary power over immigration.

[FN260]. Some have explored a similar approach in considering equal protection challenges to affirmative action programs (which involve suspect classifications). See Mark S. Kende, Comment, Principles of Competence: The Ability of Public Institutions to Adopt Remedial Affirmative Action Plans, 53 U. Chi. L. Rev. 581, 585-92 (1986); see also Metro Broad., Inc. v. FCC, 497 U.S. 547, 563-65 (1990), overruled in part by Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 226-31 (1995); Fullilove v. Klutznick, 448 U.S. 448, 549-52 (1980) (Stevens, J., dissenting), overruled in part by Adarand Constructors, Inc., 515 U.S. at 235; Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 298 (1978) (Powell, J., concurring). The opinions of Justice Stewart and Justice White in the Pentagon Papers case suggest a similar approach in the First Amendment area. See New York Times Co. v. United States, 403 U.S. 713, 727-30 (1971) (Stewart, J., concurring); id. at 730-40 (White, J., concurring).

[FN261]. See Bernard W. Bell, Using Statutory Interpretation to Improve the Legislative Process: Can It Be Done in the Post- Chevron Era?, 13 J.L. & Pol. 105, 150 (1997).

[FN262]. See id. at 135-36; Bernard W. Bell, R-E-S-P-E-C-T: Respecting Legislative Judgments in Interpretive Theory 39 & nn. 195-201 (June 11, 1999) (unpublished manuscript, on file with author).

[FN263]. See Gregory v. Ashcroft, 501 U.S. 452, 464 (1991) (“ [I]nasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress' Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise.”); see Nowak & Rotunda, supra note 119, § 4.10, at 192-93.

[FN264]. See United States v. Lopez, 514 U.S. 549 (1995), overruling Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), overruling National League of Cities v. Usery, 426 U.S. 833 (1976), partially overruling Maryland v. Wirtz, 392 U.S. 183 (1968); see also Garcia, 469 U.S. at 537-48. Herbert Wechsler long ago suggested the difficulty of crafting neutral principles to cabin Congress' Commerce Clause power. Rather, he maintained, the political processes, in which states are fully represented, could better protect states than judicially-created principles enforced by litigation. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 23-24 (1959). Jesse Choper has since expanded the argument. See Jesse H. Choper, Judicial Review and the National Political Process 175-254 (1980); see also Erwin Chemerinsky, Interpreting the Constitution 104-05 (1987).

[FN265]. See generally David A. Herrman, Comment, To Delegate or Not to Delegate-That Is Preemption: The Lack of Political Accountability in Administrative Preemption Defies Federalism Constraints on Government Power, 28 Pacific L.J. 1157, 1157, 1182 (1997).

[FN266]. See Nowak & Rotunda, supra note 119, §§ 11.8-.9, at 406-34 (discussing Due Process and Contract Clause limits on retroactive legislation). Nowak and Rotunda observe that the “criteria for determining when retroactive legislation will violate due process is unsettled.” Id. § 11.9, at 419.

[FN267]. See Landgraf v. USI Film Prods., 511 U.S. 244, 265-68 (1994). In particular, retroactive legislation implicates 1) interests in receiving fair notice of one's legal obligations (embodied in the Due Process, Bill of Attainder, and Ex Post Facto Clauses) and 2) contract rights (protected by the Contract Clause). See id. at 265. See generally Daniel E. Troy, Retroactive Legislation (1998).

[FN268]. See Landgraf, 511 U.S. at 280.

[FN269]. Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 453-54 (1990). Something similar has occurred in the due process area. The Court has adopted a general cost-benefit formula for determining the constitutionally-required level of process that must accompany particular deprivations of liberty or property. See Mathews v. Eldridge, 424 U.S. 319, 334-35, 349 (1976). The Court, however, has held that the political branches of government can perform the cost-benefit analysis more adeptly than the courts. If nothing else, the political branches possess more information relevant to the required balancing. Accordingly, the Court defers to legislative judgments regarding the adequacy of administrative processes. See id. at 349. See generally 2 Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise § 9.5, at 61 (3d ed. 1994); Jerry L. Mashaw, The Supreme Court's Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge : Three Factors in Search of a Theory of Value, 44 U. Chi. L. Rev. 28, 47-49 (1976). Indeed, issues of the general balance between the need for intrusion and the cost of intrusion seem somewhat appropriate for the populace as a whole to resolve. Moreover, judicial balancing may be particularly suspect because courts often address these “privacy” questions in the course of criminal proceedings, when the person claiming privacy often engenders little sympathy. See supra text accompanying notes 116-119. [FN270]. Sitz, 496 U.S. at 453-54.

[FN271]. See id.

[FN272]. See Herman Goldstein, Policing a Free Society 119-22 (1977) (extolling the benefits of openness and community involvement in terms of accountability of the police in determining substantive policies); Marx, supra note 1, at 95, 105 (“Undercover work is ethical when it is carried out by persons of upright character in accountable organizations.”) (arguing that the legitimacy of undercover investigation turns, in part, on whether granting police the option to use undercover means has been subject to a degree of democratic decision making, however indirect, and whether it has been “publicly announced that such means will be used”); Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. Rev. 785, 812 (1970) (promulgating guidelines “bring [s] the major issues up to visibility, and... subject [s] police resolution of those issues to correction by [the] political... process”).

[FN273]. See Carl McGowan, Rule-Making and the Police, 70 Mich. L. Rev. 659, 680-81 (1972). Absent public pressure, guidelines drafted by police officers are likely to offer little protection. See J. David Hirschel, Fourth Amendment Rights 39-69 (1979); Schoeman, supra note 228, at 19. Hirschel gave groups of police officers, prosecutors, and defense attorneys the fact patterns underlying six Fourth Amendment cases and asked them to assess the reasonableness of the search in each case. See Hirschel, supra, at 29, 41. He found police officers much less protective of Fourth Amendment rights than defense attorneys, prosecutors, and the courts that decided the actual cases. See id. at 60-61. (However, Hirschel's sample of police officers apparently did not include high-level, policy-making supervisors. See id. at 30.)

[FN274]. Lawrence W. Sherman, From Whodunit to Who Does It: Fairness and Target Selection in Deceptive Investigations, in ABSCAM Ethics, supra note 10, at 118, 128.

[FN275]. See id. at 128.

[FN276]. Sherman also argues that government should notify the targeted group that they could be subjected to deceptive investigation, see id., ensuring fair notice to those who will suffer intrusion (many of whom, presumably, have not engaged in any wrongdoing). Goldwasser makes a similar proposal. See Goldwasser, supra note 10, at 100-04.

[FN277]. Sherman, supra note 274, at 128; see also George C. Christie, Governmental Surveillance and Individual Freedom: A Proposed Statutory Response to Laird v. Tatum and the Broader Problem of Government Surveillance of the Individual, 47 N.Y.U. L. Rev. 871, 888-89 (1972) (“ [A]dequate statutory regulation of the Government's surveillance activities requires that extended surveillance of individuals or groups be authorized by officials who can be held politically accountable.”). See generally Bok, supra note 7, at 186-87.

[FN278]. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938); Ely, supra note 68, at 135-79; Tribe, supra note 21, at 1451-54, 1465-66, 1523, 1544, 1588; Michael J. Klarman, The Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, 766 (1991).

[FN279]. See Goldstein, supra note 272, at 136-40.

[FN280]. See Maclin, supra note 68, at 333-38; Dorothy E. Roberts, Crime, Race and Reproduction, 67 Tul. L. Rev. 1945, 1946 (1993).

[FN281]. See Maclin, supra, note 68 at 333. See generally Coramae Richey Mann, Unequal Justice: A Question of Color 152-53 (1993) (stating that in LA chokeholds are used mostly on minorities). [FN282]. See John S. Goldkamp, Minorities as Victims of Police Shootings: Interpretations of Racial Disproportionality and Police Use of Deadly Force, reprinted in Readings on Police Use of Deadly Force 128, 129-30 (James J. Fyfe ed., 1982); Richard W. Harding & Richard P. Fahey, Killings By Chicago Police, 1969-70: An Empirical Study, 46 S. Cal. L. Rev. 284, 309 (1973); Richard R.E. Kania & Wade C. Mackey, Police Violence as a Function of Community Characteris- tics, 15 Criminology 27, 44-46 (1977).

[FN283]. See Maclin, supra note 68, at 344-54. See generally Peter Verniero & Paul H. Zoubek, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling (1999) (finding that minority motorists have been treated differently than non-minority motorists during the course of traffic stops on the New Jersey Turnpike), available at (visited June 23, 1999) ; National Minority Advisory Council on Criminal Justice, The Inequality of Justice: A Report on Crime and the Administration of Justice in the Minority Community 165 (1980) [hereinafter The Inequality of Justice ] (referring to pedestrian stops); Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 214, 214 (1983); Michael Schneider, State Police I-95 Drug Unit Found to Search Black Motorists Four Times More Often than White: Analysis Raises Questions About Trooper Procedures, Baltimore Sun, May 23, 1996, at B2; Dan Stormer & Paul Bernstein, The Impact of Kolender v. Lawson on Law Enforcement and Minority Groups, 12 Hastings Const. L.Q. 105, 115-17 (1984); Jennifer A. Larrabee, Note, “DWB (Driving While Black)” and Equal Protection: The Realities of an Unconstitutional Police Practice, 6 J.L. & Pol'y 291, 291-98, 318 & n.142 (1997) (discussing the higher incidence of law enforcement stops among African-American drivers as opposed to other drivers and the use of race as a factor in deciding whom to subject to traffic stops).

[FN284]. See Maclin, supra note 68, at 350; see also United States v. Leviner, 31 F. Supp. 2d, 23, 338 & n.26 (D. Mass. 1998).

[FN285]. For instance, in 1994 and 1995 approximately one-third of Black men between ages 20 and 29 were either incarcerated, on probation, or on parole. See Marc Mauer & Tracy Huling, The Sentencing Project, Young Black Americans and the Criminal Justice System: Five Years Later 3-6 (1995); see also Bureau of Justice Statistics, U.S. Dep't of Justice, Prisoners in 1997, at 11 tbl. 14 (1998); Jamie Fellner & Marc Mauer, The Sentencing Project, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States 8-11, 12-14 (1998). Would we exhibit the same reliance on prison if one-third of all White males between the ages of 20 and 29 were incarcerated, on probation, or on parole? See generally Jason DeParle, Shrinking Welfare Rolls Leave Record High Share of Minorities, N.Y. Times, July 27, 1998, at A1 (noting concern that political support for public assistance might erode as Whites become a minority of those on public assistance). Similarly, Klarman speculates that brutal interrogation practices would not have been tolerated until the early 1960's had they not been used overwhelmingly against members of racial minorities. Klarman, supra note 278, at 766.

[FN286]. See Jerome H. Skolnick & James J. Fyfe, Above the Law: Police and the Excessive Use of Force 15-16, 20-21, 238-41 (1993); see also Report of the National Advisory Comm'n on Civil Disorders 158 (1968) (“Negroes firmly believe that police brutality and harassment occur repeatedly in Negro neighborhoods [;] [t]his belief is unquestionably one of the major reasons for intense Negro resentment against the police.”); Samuel Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, at 26, 40 (1993) (stating that shootings are a civil rights problem and action to control such shootings has resulted from advocacy by racial minorities). Admittedly, however, in some cities racial and ethnic minorities may constitute a majority of the electorate.

[FN287]. See James Baldwin, Fifth Avenue, Uptown: A Letter From Harlem, in Nobody Knows My Name: More Notes of a Native Son 56, 65-67 (1961); The Inequality of Justice, supra note 283, at 182-83; Mann, supra note 281, at 162 & n.41, 162-64 (citing studies); Maclin, supra note 68, at 387-88, 391 & n.246; Roberts, supra note 280, at 1946; Dominick A. Sacco, The Police Subculture: A Study of the Informal Structure of Police Behavior 104 & n.201 (unpublished Ph.D. dissertation, Fordham University) (on file with the Rutgers University School of Criminal Justice Library). [FN288]. See Federal Bureau of Investigation, U.S. Dep't of Justice, Crime in the United States 1996: Uniform Crime Reports 232 tbl. 43 (1997) (reporting arrest rates by race); Alice E. Harvey, Comment, Ex-Felon Disenfranchisement and Its Influence on the Black Vote: A Need for a Second Look, 142 U. Pa. L. Rev. 1145, 1156 (1994).

[FN289]. See Bok, supra note 7, at 186-87 (arguing that the use of undercover operations must be openly debated); McGowan, supra note 273, at 681 (“ [I]t is the visibility of the administrative rule-making process which is its greatest virtue.”). Indeed, John Hart Ely argues that maintaining the channels of political change-ensuring that those in power cannot prevent outsiders from fairly competing for political power-provides one of the principal justifications for judicial review. See Ely, supra note 68, at 105-34.

[FN290]. Frank J. Donner, The Age of Surveillance: The Aims and Methods of America's Political Intelligence System 30 (1980); see also Marx, supra note 1, at 18 n.2.

[FN291]. See Marx, supra note 1, at 139. See generally id. at 138-40.

[FN292]. See id. at 25, 31, 32, 140. See generally Maclin, supra note 10, at 575 n.13, 623 & n.279. Indeed, the FBI used informants in organizing and facilitating the infamous Palmer Raids in 1920.

[FN293]. The Founding Fathers recognized the importance of this approach-believing that laws should apply to members of Congress as well as the general public. See The Federalist No. 57, at 352-53 (James Madison) (Clinton Rossiter ed., 1961) (stating that the House of Representatives “can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society”); Thomas Jefferson, A Manual of Parliamentary Practice: For Use of the Senate of the United States § 288, reprinted in H.R. Doc. No. 102-405, at 119, 123 (1993) (“ [I]t was probably from this view of the encroaching character of [legislator] privilege that the framers of our Constitution, in their care to provide that the laws shall bind equally on all, and especially that those who make them shall not exempt themselves from their operation,” granted only very limited immunities to legislators under the Constitution). This approach has been codified recently in the Congressional Accountability Act, Pub. L. No. 104-1, 109 Stat. 3 (1995); see also Harold H. Bruff, That the Laws Shall Bind Equally on All: Congressional and Executive Roles in Applying Laws to Congress, 48 Ark. L. Rev. 105 (1995); Charles Grassley & Jennifer Shaw Schmidt, Practicing What We Preach: A Legislative History of Congressional Accountability, 35 Harv. J. on Legis. 33 (1998). The Court has adopted the same approach with respect to taxation of the press. In Leathers v. Medlock, 499 U.S. 439 (1991), the Court observed: We noted [in prior media tax cases] that the general applicability of any burdensome tax law helps to ensure that it will be met with widespread opposition. When such a law applies only to a single constituency, however, it is insulated from this political constraint.

Id. at 445-46; see also Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 585 (1983); Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112-13 (1949) (“The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.”). Many state constitutions prohibit legislatures from enacting “special laws,” i.e., laws regarding particular individuals or small groups of individuals, or severely limit their power to do so. See William D. Popkin, Materials on Legislation: Political Language and the Political Process 819-22 (2d ed. 1997); 2 Norman J. Singer, Sutherland Statutory Construction § 40, at 183-336 (5th ed. 1992); William D. Popkin, The Collaborative Model of Statutory Interpretation, 61 S. Cal. L. Rev. 541, 555 & n.63 (1988).

[FN294]. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 454 (1990). The results of non-random stops on the New Jersey Turnpike are described in Frank Askin, Defending Rights: A Life in Law and Politics 47-51 (1997). See generally supra notes 283-84 and accompanying text. [FN295]. See Marx, supra note 1, at 8. Indeed, the use of undercover techniques against members of Congress in ABSCAM, see supra note 10, and the attempted use of such techniques against President Clinton and a close associate, see Steven Brill, Pressgate, Brill's Content, Aug. 1998, at 122, 127-28, have both raised concerns about the use of such techniques. See, e.g., Blecker, supra note 10, at 832, 839, 911, 958 (noting journalistic, public, legislative, and judicial reactions to ABSCAM); Ronald Brownstein & Kenneth T. Walsh, Starr Struck, U.S. News & World Rep., Feb. 2, 1998, at 14, 28 (“Some questioned the propriety of Starr's wiring [Linda] Tripp or apparently attempting to entice [Monica] Lewinsky into what amounted to a sting operation against the president.”); Alan Ehrenhalt, The Age of Entrapment, N.Y. Times, Feb. 5, 1998, at A23; William Safire, Whose “Conspiracy?,” N.Y. Times, Jan. 29, 1998, at A23 (“That reluctance to strike a pose of high moral dudgeon was compounded by the initial sleaziness of the gathering of evidence [;] [p]eople who secretly tape telephone calls from friends and colleagues engage in a loathsome invasion of privacy.”). Some jurists have attempted to distinguish undercover public corruption investigations from undercover narcotics investigations, expressing concern over the former while acknowledging that courts have generally viewed the latter approvingly. See Hampton v. United States, 425 U.S. 484, 493 (1976) (Powell, J., concurring); United States v. Jannotti, 501 F. Supp. 1182, 1190 (E.D. Pa. 1980), rev'd, 673 F.2d 578 (3d Cir. 1982).

[FN296]. However, press use of such techniques could have a democratizing affect. The press can use against the power elite, government officials and their allies, the same techniques that government bodies use against ordinary citizens. Of course, the press is in some ways part of the power elite.

[FN297]. See Riss v. City of New York, 293 N.Y.S.2d 897, 898-99 (N.Y. 1968); Barbara E. Armacost, Affirmative Duties, Systemic Harms, and the Due Process Clause, 94 Mich. L. Rev. 982, 1002-14 (1996).

[FN298]. See Amsterdam, supra note 106; Amsterdam, supra note 272.

[FN299]. See Amsterdam, supra note 106, at 414-28; Amsterdam, supra note 272, at 810-15.

[FN300]. See Amsterdam, supra note 106, at 403; Amsterdam, supra note 272, at 812; see also Goldstein, supra note 272, at 93-126.

[FN301]. See infra notes 339-40 and accompanying text.

[FN302]. See McGowan, supra note 273, at 683, 686 (“The relevant inquiry is as to the reconstruction of the role of the courts so that they can more effectively review police conduct by reference to rationally conceived prior rules, as distinct from formulating such rules in the first instance.”); see also Davis, supra note 149, at 98-158. Samuel Walker has suggested that legislatures could also take this approach to limit law enforcement discretion. See Walker, supra note 286, at 154-55; Samuel Walker, Controlling the Cops: A Legislative Approach to Police Rulemaking, 63 U. Det. L. Rev. 361 (1986). “ [State legislatures] could identify a discrete number of critical decision points-deadly force,... pursuits, arrest, intelligence gathering, and the like-and require every agency to have a written policy covering them. The substance of each policy would be left to the individual departments.” Walker, supra note 286, at 154; see also Walker, Controlling the Cops, supra.

[FN303]. See, e.g., Davis, supra note 149, at 98-158.

[FN304]. But see Dancy v. United States, 395 F.2d 636, 638-39 (D.C. Cir. 1968). In Dancy, the court noted that accountable, high-level police officials should develop explicit regulations governing undercover operations. See id. Admittedly, the Dancy court's concern was the delay in bringing defendants to trial (and the consequent increased potential that undercover officers would misidentify defendants) caused by the need to protect the identities of active undercover agents.

[FN305]. United States v. Caceres, 440 U.S. 741, 755 (1979). Indeed, the Supreme Court cites one of Amsterdam's articles in support of its statement. See id. at 755 n.23.

[FN306]. See Caceres, 440 U.S. at 755-56. Of course, courts could take the opposite approach. See United States v. Heffner, 420 F.2d 809, 812 (4th Cir. 1970); McGowan, supra note 273, at 684-85. By judicially enforcing rules established by the political branches to protect constitutional norms, the judiciary can more fully enforce those norms than it could acting alone (because of its institutional problems), yet at the same time not strain its institutional capacities. The Court would avoid institutional strain, because it would not be called upon to decide the intractable questions that it fears will strain its capacities-the Court would merely need to apply more specific rules that the political branches of government have established. The Court should protect constitutional norms to the extent that doing so does not strain its institutional capacities. Since political branch action would have made it more possible to protect those constitutional norms, the Court should do so. Indeed, if the Court concludes that action by the political branches of government is more appropriate than independent judicial enforcement to protect a constitutional value and accordingly encourages such action by the political branches, the Court at least ought to show respect for the results of the political process it has encouraged by enforcing the rules resulting from that process.

[FN307]. See Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 451-53 (1990); Donovan v. Dewey, 452 U.S. 594, 606 (1981) (discussing administrative inspections); Delaware v. Prouse, 440 U.S. 648, 663 (1979); Marshall v. Barlow's, Inc., 436 U.S. 307, 320-21 (1978); Campbell v. Florida, 679 So. 2d 1168, 1172 (Fla. 1996) (requiring advance written guidelines for police roadblock); LaFave & Israel, supra note 26, at § 3.9, at 227 (summarizing Prouse and Sitz ).

[FN308]. See Caceres, 440 U.S. at 752. The Court's reasoning may be disingenuous-perhaps the Court merely sought to maximize the likelihood of criminal convictions (by decreasing the chance that evidence would be excluded). Excluding evidence gathered in violation of an administrative rule arguably will not encourage law enforcement abandonment of rules (especially if the courts also treat actions conforming with regulations particularly favorably).

[FN309]. See Marx, supra note 1, at 191-92 (discussing oversight of law enforcement officials); Bell, supra note 261, at 145-47.

[FN310]. The Director of the FBI is one exception. See Omnibus Crime Control and Safe Streets Act, Pub. L. No. 90-351, § 1101, 82 Stat. 197, 236 (1968), as amended by Crime Control Act, Pub. L. No. 94-503, § 203, 90 Stat. 2407, 2427 (1976).

[FN311]. See Attorney General's Guidelines on FBI Undercover Operations (Dec. 31, 1980), reprinted in S. Rep. No. 97-682, at 536, 545-46 (1982) (issued by Benjamin R. Civilletti).

[FN312]. See FBI Undercover Operations, supra note 150, at 136; FBI Undercover Operations, supra note 10, at 1-2; Final Report, supra note 10. See generally Blecker, supra note 10, at 870-72 (overly sanguine discussion of congressional control over the Federal Bureau of Investigation based on the period immediately following the disclosure of the ABSCAM operation).

[FN313]. See Bruce Smith, Police Systems in the United States 81-86 (1940); Gregory Howard Williams, The Law and Politics of Police Discretion 16 (1984).

[FN314]. See Goldstein, supra note 272, at 132, 134. [FN315]. See John M. Dawson et al., U.S. Dep't of Justice, Prosecutors in State Courts 1992, at 2 (1993) (stating that in 1990, “ [o]ver 95% of chief prosecutors [were] elected locally”).

[FN316]. See Marx, supra note 1, at 89. See generally Marx, supra note 1, at 46, 190-91; Williams, supra note 313, at 100-04 (discussing prosecutors' influence on arrest decisions).

[FN317]. At least scholars have documented no supervision.

[FN318]. The City of Seattle, Washington, established controls over the conduct of undercover operations by ordinance in 1979. See Charter for the FBI, supra note 147, at 31-151.

[FN319]. See Matthew D. Adler, Judicial Restraint in the Administrative State: Beyond the Countermajoritarian Difficulty, 145 U. Pa. L. Rev. 759, 766 (1997).

[FN320]. Legislatures and law enforcement agencies have, for instance, altered law enforcement policies with regard to high- speed pursuit of suspects, and the use of choke holds, deadly force, and strip searches. Some states have enacted statutes limiting high-speed chases or requiring local police departments to adopt regulations setting forth the circumstances in which they will chase fleeing suspects at high speed and the manner in which such chases will be conducted. See Cal. Penal Code §§ 13519.8(a), (d), (e) (West Supp. 1998); Conn. Gen. Stat. Ann. § 14-283a (West 1987) (requiring each police department in state to adopt policies regarding high-speed pursuits); Me. Rev. Stat. Ann. tit. 29-A, § 2414(5) (West 1996); Mo. Ann. Stat. § 544.157(4) (West Supp. 1998); Neb. Rev. Stat. § 29-211 (1995). See generally Walker, supra note 286, at 41-44; Joe Sharkey, Slamming the Brakes on Hot Pursuit, N.Y. Times, Dec. 14, 1997, § 4, at 3. Of course, perhaps court-imposed legal liabilities in common-law negligence claims arising from accidents caused by high-speed pursuits have provided the impetus for government officials to restrain high-speed chases. The use of choke holds in Los Angeles was not only a legal issue, but also a political one, which ultimately resulted in local elected officials banning the use of choke holds. See Bob Baker, Limit Choke Holds, L.A. Police Ordered, L.A. Times, Dec. 19, 1980, pt. II, at 1; Charles P. Wallace, Bar-Arm Choke Hold Banned, L.A. Times, May 7, 1982, pt. I, at 1; Charles P. Wallace, Gates Offers Refined Choke Holds Policy, L.A. Times, Apr. 22, 1982, pt. II, at 1. The ban on the use of choke holds reflects a larger trend toward controlling the use of deadly force. See Tennessee v. Garner, 471 U.S. 1, 18-19 (1985); Walker, supra note 286, at 25-33; LaFave, supra note 68, at 483 (explaining that promulgation of use of force guidelines is increasing because “ ‘ [p]olice use of firearms to apprehend suspects often strains community relations or even results in serious disturbances”’ (quoting President's Comm'n on Law Enforcement and Admin. of Justice, Task Force Report: The Police 189 (1967)); Walker, supra note 302, at 368-69. The use of strip searches is another politically-salient law enforcement issue that has gained legislative attention. See Cal. Penal Code § 4030 (West Supp. 1998) (enacted in 1984) (limiting the conduct of strip searches); 725 Ill. Comp. Stat. Ann. 5/103-1(c)-(j) (West 1993) (subjecting strip searches to a warrant requirement); Alderman & Kennedy, supra note 37, at 10, 18; Williams, supra note 313, at 95. Thirteen other states have statutes limiting the use of strip searches. See Colo. Rev. Stat. § 16-3-405 (1998); Conn. Gen. Stat. Ann. § 54-31 (West 1994); Fla. Stat. Ann. § 901.211 (West 1996); Iowa Code Ann. § 804.30 (West 1994); Kan. Stat. Ann. §§ 22-2520, 22-2521 (1995); Me. Rev. Stat. Ann. tit. 5, § 200-G (West 1989); Mich. Comp. Laws Ann. § 764.25a (West 1982 & Supp. 1998); Mo. Ann. Stat. § 544.193 (West 1987); N.J. Stat. Ann. §§ 2A:161A-1, -2, -3, - 4, -5 (West Supp. 1998); Ohio Rev. Code Ann. § 2933.32 (West 1997); Tenn. Code Ann. §§ 40-7-119, 40-7-121 (1997); Va. Code Ann. § 19.2-59.1 (Michie 1995); Wash. Rev. Code Ann. §§ 10.79.100, 10.79.130 (West 1990); Wis. Stat. Ann. § 968.255 (West 1998).

[FN321]. Undercover operations may command attention once they have ended and law enforcement officials announce, with appropriate panache, the impending prosecution of a miscreant as a result-but by then the targets of the investigation are not particularly sympathetic. [FN322]. See Goldstein, supra note 272, at 132-35. Moreover, many police chiefs enjoy civil service protections, see id. at 134, and police officials lobby strenuously when their autonomy is threatened. See id. at 139-40.

[FN323]. See id. at 132-35; George L. Kelling & Catherine M. Coles, Fixing Broken Windows 176 (1996); Williams, supra note 313, at 104-05; Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 Colum. L. Rev. 551, 657 (1997).

[FN324]. See Williams, supra note 313, at 8-9, 75; Livingston, supra note 323, at 654-55, 658-59, 661, 662. Neither prosecutors, local chief executives and legislators, nor state legislators have asserted substantial control over law enforcement agencies. See Williams, supra note 313, at 77-87 (state legislators), 100-04 (prosecutors), 104-07 (local elected officials); Livingston, supra note 323, at 656-57 (same).

[FN325]. See Henry Hamilton & John Ortiz Smykla, Guidelines for Police Undercover Work: New Questions About Accreditation and the Emphasis of Procedure over Authorization, 11 Just. Q. 135, 147-49 (1994). See generally Dix, supra note 9, at 204-08, 219-20, 292.

[FN326]. See Hamilton & Smykla, supra note 325, at 145.

[FN327]. See id.

[FN328]. See id. at 145-46.

[FN329]. Id. at 147-49.

[FN330]. Id.

[FN331]. See Houchins v. KQED, Inc., 438 U.S. 1, 13-14 (1978). In the course of rejecting the press's argument that they should be accorded a right of access to public institutions because they are particularly well-qualified to discover malfeasance in such institutions, the Court explained: “Public bodies and public officers... may be coerced by public opinion to disclose what they might prefer to conceal. No comparable pressures are available to anyone to compel publication by the media of what they might prefer not to make known.” Id. at 14 (emphasis added); see also Louis W. Hodges, Defining Press Responsibility: A Functional Approach, in Responsible Journalism 13, 15, 22 (Deni Elliott ed., 1986). “Democracy demands a fiercely independent press, especially one free from accountability to government.” Hodges, supra, at 15. “Readers and viewers have relatively little capacity to influence, much less to control, press performance.” Id. at 22. A case study by Herbert Gans tends to support these assertions. See Herbert J. Gans, Deciding What's News: A Study of CBS Evening News, NBC Nightly News, Newsweek, and Time 214-15, 217, 220, 229-38, 241-46, 248 (1979). Anecdotal evidence suggests that many news organizations are sensitive to public attitudes toward them and that such sensitivity leads to a reluctance to employ undercover tactics. See Goodwin, supra note 148, at 140-44. Indeed, at least one scholar suggests that, in deciding to conduct such an operation, editors should consider whether their readers would “support [their] information-gathering technique even if the story [they] hope to find isn't there.” Deni Elliott, The Consequences of Deception: Unwarranted Use Can Damage Public Trust in Journalists, in 1984-85 Report of SPJ-SDX Ethics Committee 14-15, quoted in Goodwin, supra note 148, at 160. Of course a publication's readership may not reflect the views of the general public. See Donald M. Gillmor, Power, Publicity, and the Abuse of Libel Law 156 (1992) (“ [I]t is a mistake to assume... that the support of local readers, listeners, and viewers implies the support of the whole society or any large part of it....”). There is also a growing perception that advertisers influence media behavior (although most such pressure relates to the content of stories rather than newsgathering techniques). See C. Edwin Baker, Advertising and a Democratic Press, 140 U. Pa. L. Rev. 2097, 2144-53 (1992). But see James Russell Wiggins, Freedom or Secrecy 204-06 (1964) (stating that advertisers exert little control over the content of newspapers). See generally Russ Baker, The Squeeze, Colum. Journalism Rev., Sept.-Oct. 1997, at 30; Lawrence Soley, “The Power of the Press Has a Price,” Extra ! (July-Aug. 1997) ; G. Pascal Zachary, All the News? Many Journalists See a Growing Reluctance to Criticize Advertisers, Wall St. J., Feb. 6, 1992, at A1.

[FN332]. 408 U.S. 665 (1972).

[FN333]. See id. at 679-708. In general, any constitutional right to gather news is quite limited, if it exists at all. See id. at 679-81, 707-08 (recognizing constitutional interest in gathering news); id. at 709-10 (Powell, J., concurring) (same). Indeed, granting “the press” a special right of access would surely require the press to accept some accountability for its editorial decisions. See generally Anthony Lewis, A Preferred Position for Journalism?, 7 Hofstra L. Rev. 595, 605 (1979); William W. Van Alstyne, Comment, The Hazards to the Press of Claiming a “Preferred Position,” 28 Hastings L.J. 761 (1977). Indeed, Judge Tamm relied on such an argument in urging that the media be held to at least the same standards as law enforcement when engaging in certain undercover operations. See Pearson v. Dodd, 410 F.2d 701, 708 (D.C. Cir. 1969). In Pearson v. Dodd, journalists had, over a period of several weeks, reviewed documents purloined overnight from a Senate office by an aide to the Senator. See id. at 701, 703. Judge Tamm noted in his concurrence that: Some legal scholars will see in the majority opinion... an ironic aspect. Conduct for which a law enforcement official would be soundly castigated is... found tolerable; conduct which, if engaged in by government agents would lead to the suppression of evidence obtained by these means, is approved when used for the profit of the press. There is an anomaly lurking in this situation: the news media regard themselves as quasi-public institutions yet they demand immunity from the restraints which they vigorously demand be placed on government. Id. at 708 (Tamm, J., concurring) (emphasis added). [FN334]. Brief for Petitioner at 31-32, Branzburg, 408 U.S. 665 (No. 70-85), reprinted in 74 Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 569, 604-05 (Philip B. Kurland & Gerhard Casper eds., 1975).

[FN335]. Branzburg, 408 U.S. at 697.

[FN336]. Id. at 698.

[FN337]. See id. at 682-83, 691-92.

[FN338]. As noted earlier, the Supreme Court has created so many exceptions to the warrant requirement that most searches are conducted without warrants and many commentators believe that the warrant requirement has been eviscerated. See supra note 204.

[FN339]. United States v. Leon, 468 U.S. 897, 913-14, 916-17 (1984); see also United States v. United States District Court, 407 U.S. 297, 316-18 (1972); United States v. Ventresca, 380 U.S. 102, 106 (1965); LaFave & Israel, supra note 26, at § 3.3, at 138.

[FN340]. Ventresca, 380 U.S. at 106.

[FN341]. See Leon, 468 U.S. at 916-17 & n.15; United States District Court, 407 U.S. at 317; Johnson v. United States, 333 U.S. 10, 14 (1948) (The Fourth Amendment's “protection [s] consist [] in requiring that... inferences [of likely criminal conduct] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”); United States v. Lefkowitz, 618 F.2d 1313, 1316 (9th Cir. 1980).

[FN342]. See FBI Undercover Operations, supra note 10, at 83-84. [FN343]. See Panel Presentation, supra note 216, at 189-90 (remarks of Bernard Bell).

[FN344]. See Right to Financial Privacy Act of 1978, 12 U.S.C. §§ 3402, 3403(a), (b) (1994).

[FN345]. See id. § 3404.

[FN346]. See id. §§ 3405, 3407, 3408. Law enforcement officials can avoid giving the financial institution's customer notice and an opportunity to contest only by proving that: (1) “the records being sought are relevant to a legitimate law enforcement inquiry,” and (2) notification will result in one of five specified harms. Id. § 3409(a).

[FN347]. Id. § 3410(c). In addition, a court must grant the motion to quash if the government agency has not substantially complied with the statute. See id.

[FN348]. See id. § 3406; Fed. R. Crim. P. 41(c)(1).

[FN349]. 12 U.S.C. §§ 3406(c), 3409(a).

[FN350]. See id. § 3412.

[FN351]. Id. §§ 3412, 3413. These requirements need not be satisfied if the records fall within certain statutory exceptions. See id. § 3413.

[FN352]. See id. §§ 3401-3422.

[FN353]. See 42 C.F.R. § 2.67(2)(e) (1998). Confidentiality of Alcohol and Drug Abuse Patient Records, 48 Fed. Reg. 38758, 38763, 38778 (to be codified at 42 C.F.R. pt. 2) (proposed Aug. 25, 1983).

[FN354]. See Confidentiality of Alcohol and Drug Abuse Patient Records, 48 Fed. Reg. at 38763.

[FN355]. 42 C.F.R. § 2.67 at (c).

[FN356]. See id. § 2.67(d).

[FN357]. See FBI Undercover Operations, supra note 150, at 10; FBI Undercover Operations, supra note 10, at 83-84; Marx, supra note 1, at 193-95; Dix, supra note 9, at 292-93 (arguing that although traditional warrants would be inappropriate in the undercover context, they would provide an effective basis in developing guidelines for undercover operations); Slobogin, supra note 70, at 103-06; H. Richard Uviller, Evidence from the Mind of the Criminal Suspect: A Reconsideration of the Current Rules of Access and Restraint, 87 Colum. L. Rev. 1137, 1209-11 (1987).

[FN358]. See FBI Undercover Operations, supra note 10, at 83-84. The warrant requirement governing wiretaps had been established by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, §§ 2516-2518, 82 Stat. 197, 216-21.

[FN359]. See FBI Undercover Operations, supra note 10, at 83-84.

[FN360]. See id. [FN361]. Id.

[FN362]. See id.

[FN363]. See FBI Undercover Operations, supra note 150, at 84-85; see also Marx, supra note 1, at 193-94 (describing suggested reforms and listing the aspects of an effective undercover warrant system). Others have suggested imposing a warrant requirement on undercover operations. See Maclin, supra note 10, at 631-34; Slobogin, supra note 70, at 105-06; Uviller, supra note 357, at 1209-12.

[FN364]. See Paterno, supra note 12, at 4; Jules Witcover, Where We Went Wrong, Colum. Journalism Rev., Mar.-Apr. 1998, at 18, 24; Felicity Barringer, Seeking Dramatic Footage No Matter What the Cost, N.Y. Times, May 18, 1998, at D1; What We Do Now, Colum. Journalism Rev., Mar.-Apr. 1998, at 25, 25. Similar competition sometimes takes place in the law enforcement context as well. See Benjamin Weiser, Dispute Escalates Between 2 Top Prosecutors in Manhattan, N.Y. Times, Dec. 5, 1997, at B3; Benjamin Weiser, 2 Prosecutors, State and U.S., Fight over Plea, N.Y. Times, Dec. 4, 1997, at A1.

[FN365]. One notewriter has suggested a similar approach, namely providing a procedure for journalists to seek prosecutorial immunity prior to conducting an undercover investigation. See Keeton, supra note 155, at 136.

[FN366]. See New York Times Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J., concurring); Near v. Minnesota, 283 U.S. 697, 733 (1931) (Butler, J., dissenting).

[FN367]. See Herbert v. Lando, 441 U.S. 153, 168 (1979) (“ [H]oldings that neither a State nor the Federal Government may dictate what must or must not be printed neither expressly nor impliedly suggest that the editorial process is immune from any inquiry whatsoever.”). The procedures that the Court has mandated in the limited circumstances where it has allowed prior restraints, namely the standards set forth in Freedman v. Maryland, 380 U.S. 51 (1965), to govern suppression of obscene speech, could be applied only with great difficulty to ex ante review of undercover operations. Under Freedman, any system of prior restraints must: 1) afford a prompt hearing to the person whose communication is at issue, 2) require the state to shoulder the burden of showing that the material is obscene, 3) defer the imposition of a valid final restraint on the material until a judicial proceeding is commenced and completed, and 4) require the state to seek affirmation of its initial finding of obscenity. See id. at 58-59; Nowak & Rotunda, supra note 119, at § 16.61(c), at 1207-08. Applying the Freedman test would be difficult-though any procedure for ex ante review of media undercover operations would require journalists to come forward, the proceedings would be ex parte. The party whose interest would be harmed by the press intrusion, namely the target of the undercover investigation, could not be notified of the proposed undercover operation. Thus, the target could not be expected to initiate judicial consideration of the undercover operation, and in fact could not participate in the procedure at all. Ordinarily, of course, under Freedman, the non-media party (in obscenity cases, the government) must bear the burden of seeking a judicial determination. See Freedman, 380 U.S. at 58. Mandatory ex ante review of undercover operations would not satisfy that requirement. On the other hand, in obscenity cases the non-media interest can participate in the ex ante proceedings. Because such a party could not participate in ex ante undercover proceedings, the media entity would enjoy an advantage it ordinarily does not enjoy under Freedman.

[FN368]. See Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971) (“ [N]ewsgathering is an integral part of news dissemination.”); Allen v. Combined Communications Corp., 7 Media L. Rep. (BNA) 2417, 2419-20 (D. Colo. 1981); see also Branzburg v. Hayes, 408 U.S. 665, 682-86 (1972) (listing limitations on right to gather and disseminate information); id. at 709-10 (Powell, J., concurring) (emphasizing need for balancing freedom of press and obligation of citizens to provide testimony with respect to criminal conduct); id. at 727-28 (Stewart, J., dissenting) (recognizing reporters limited right to gather information). See generally Miller v. National Broad. Co., 232 Cal. Rptr. 668, 684 (Cal. Ct. App. 1986) (noting that constitutional protection for newsgathering is limited, not absolute); Dienes et al., supra note 95, § 12-4(c)(3), at 468-69 (illustrating retreat from broad reading of First Amendment interest in newsgathering).

[FN369]. See 12 U.S.C. §§ 3409(a)(2), 3410(c) (1994) (providing that law enforcement may obtain financial records only to investigate crimes); FBI Undercover Operations, supra note 150, at 84 (undercover operations available only for specified offenses); 42 C.F.R. § 2.6(c) (1998) (setting limits on the Public Health Service's power to conduct criminal investigations against certain individuals and requiring judicial balancing to determine whether the undercover operation is worth the damage to the therapeutic relationship).

[FN370]. See Shulman v. Group W Prods., Inc., 955 P.2d 469, 481-85 (Cal. 1998); Elder, supra note 47, § 3.12, at 215-38.

[FN371]. Congress (and state legislatures) could institute a disclosure requirement, providing that once a law enforcement agency completes an undercover operation, the investigatory agency must inform anyone who has been tested or misled by the operation, even if it reveals no unlawful activity. For instance, Title III requires disclosure to the person who has been subjected to a court-ordered wiretap once the wiretap ends. See 18 U.S.C. § 2518(8)(d) (1994); United States v. Donovan, 429 U.S. 413, 428-32 (1977); LaFave & Israel, supra note 26, §4.5(d), at 269-70. Similarly, the Right to Financial Privacy Act provides that the government must notify depositors that it has obtained their banking records. See 12 U.S.C. § 3406 (1994). More general knowledge of unsuccessful operations as well as successful ones would provide valuable perspective to the citizenry, and enhance the political protection of privacy. Ironically, however, disclosure of unsuccessful undercover investigations would produce more harm to private relationships, see supra notes 231-32 and accompanying text, than allowing the government to maintain secrecy concerning unsuccessful undercover operations. Exceptions to any disclosure requirement would have to be crafted to protect undercover operatives who must maintain their covers. Perhaps an exception would also be needed to avoid compelling disclosure to people who should be subjected to further investigation (because, for instance, there is probable cause to believe the target guilty even if the particular undercover operation did not produce any evidence of such criminal activity).

[FN372]. See Frederick Schauer, Uncoupling Free Speech, 92 Colum. L. Rev. 1321, 1326-43 (1992).

[FN373]. 124 N.W. 221 (Minn. 1910).

[FN374]. See id. at 221-22. Of course, the approach is also popular with regard to unintentional torts. In particular it is reflected in the law regarding products liability for manufacturing defects, liability for ultrahazardous activities, and vicarious liability.

[FN375]. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347-48 & n.10 (1974).

[FN376]. See id. at 347-52.

[FN377]. See Randall R. Bovbjerg et al., Valuing Life and Limb in Tort: Scheduling “Pain and Suffering,” 83 Nw. U. L. Rev. 908, 909-25 (1989); Martha Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U. Pa. L. Rev. 463, 506-08 (1998).

[FN378]. Cf. Bovbjerg et al., supra note 377, at 925 (“ [U]npredictable valuations [of personal injuries] undercut the deterrence function of tort law.”).

[FN379]. See generally Marc A. Franklin, A Declaratory Judgment Alternative to Current Libel Law, 74 Cal. L. Rev. 809, 811-19 (1986) (offering alternative to “high stakes” game that results from current libel law); Marc Franklin, Good Names and Bad Law: A Critique of Libel Law and a Proposal, 18 U.S.F. L. Rev. 1, 29-47 (1983) (arguing that remedies other than money may meet the needs of some plaintiffs); Pierre N. Leval, The No-Money, No-Fault Libel Suit: Keeping Sullivan in Its Proper Place, 101 Harv. L. Rev. 1287, 1298-302 (1988) (suggesting that a no-damages libel suit with lesser evidentiary requirements would improve the efficiency of that course of action).

[FN380]. See Herbert v. Lando, 441 U.S. 153, 174 (1979) (“This is not to say that the editorial discussions or exchanges have no constitutional protection from casual inquiry. There is no law that subjects the editorial process to private or official examination merely to satisfy curiosity or to serve some general end such as the public interest; and if there were, it would not survive constitutional scrutiny as the First Amendment is presently construed.”); Herbert v. Lando, 568 F.2d 974, 984 (2d Cir. 1977), rev'd, 568 F.2d 974; id. at 994-95 (Oakes, J., concurring) (“ [T]he editorial relationship may be chilled if its dynamics are subject to forced scrutiny.... [A]s soon as [the process of editorial selection] is subject to scrutiny, there is a suppression effect; and as soon as there is such an effect, the freedom of the press has evaporated.”); Lackland H. Bloom, Jr., Proof of Fault in Media Defamation Litigation, 38 Vand. L. Rev. 247, 321 (1985); cf. Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982) (“Judicial inquiry into subjective motivation therefore may entail broad-ranging discovery and the deposing of numerous persons, including an official's professional colleagues. Inquiries of this kind can be peculiarly disruptive of effective government.” (footnote omitted)); Note, The Privilege of Self-Critical Analysis, 96 Harv. L. Rev. 1083, 1091-93 (1983).

[FN381]. 441 U.S. 153.

[FN382]. See id. at 171-75.

[FN383]. See id. at 160-61, 169-71, 175-76; Herbert, 568 F.2d at 996 (Meskill, J., dissenting).

[FN384]. See Kohn v. West Haw. Today, Inc., 656 P.2d 79, 83 (Haw. 1982) (deviation from newspaper's own standards); Gazette, Inc. v. Harris, 325 S.E.2d 713, 730-31 (Va. 1985) (defendant's deviation from its own standards); Bloom, supra note 380, at 322-23.

[FN385]. One notewriter suggests this approach. See Keeton, supra note 155, at 136. For a discussion of media self- regulation by industry-wide codes or codes adopted by individual news organizations, see Gillmor, supra note 331, at 157-64.

[FN386]. See Black et al., supra note 2, at 221-23.

[FN387]. See id. at 223. The codes are generally enforced internally.

[FN388]. See Paterno, supra note 12, at 42.

[FN389]. See Black et al., supra note 2, at 129.

[FN390]. The Poynter Institute advises journalists not to engage in deception unless: a) they anticipate obtaining information of “profound importance,” b) all other alternatives have been exhausted, c) they apply excellence to fully pursue the story, d) the harm prevented by the act of deception outweighs harm caused by the act of deception, and e) “the journalists involved have conducted a meaningful, collaborative, and deliberative decision making process.” Id. at 120.

[FN391]. Society of Professional Journalists, SPJ Code of Ethics (adopted Sept. 1996) (visited Feb. 9, 1998) . [FN392]. Id.

[FN393]. Public Radio News Dirs., Inc., Code of Ethics 7, 8 (adopted July 27, 1991), reprinted in Black et al., supra note 2, at 8, 9.

[FN394]. See Bloom, supra note 380, at 341-44; see also Gobin v. Globe Publ'g Co., 531 P.2d 76, 84 (Kan. 1975) (adopting professional standard). But see Troman v. Wood, 340 N.E.2d 292, 298-99 (Ill. 1975) (rejecting professional standard); Sack & Baron, supra note 47, § 5.5.1, at 277, § 5.5.2.4, at 302 & Supp. at 181-83 (2d ed. 1994 & Supp. 1998). See generally Franklin & Anderson, supra note 164, at 286.

[FN395]. See Black et al., supra note 2, at 15; Gillmor, supra note 331, at 157.

[FN396]. See Black et al., supra note 2, at 30-31. Thus, no term limits can be imposed upon the media. But cf. Fallows, supra note 13, at 38-39 (suggesting that the media impose term limits on itself); Steve Goldstein, How About Term Limits for the Unelected Elite, Colum. Journalism Rev., May-June 1994, at 34, 35-36 (same). Similarly, the Government could not impose upon journalists a requirement to disclose their financial worth or interests. But cf. Fallows, supra note 13, at 35-38 (suggesting that failure to disclose undermines journalists' credibility).

[FN397]. See Russ Baker, Damning Undercover Tactics as “Fraud,” Colum. Journalism Rev., Mar.-Apr. 1997, at 28, 31.

[FN398]. Many scholars have proposed that law enforcement should be required to make some heightened showing before establishing certain confidential relationships with targets to further an undercover operation. See supra note 228.

[FN399]. See Wilson v. Wilson-Cook Med., Inc., 720 F. Supp. 533, 542 (M.D.N.C. 1989); Buie v. Daniel Int'l Corp., 289 S.E.2d 118, 119-20 (N.C. Ct. App. 1982).

[FN400]. See Olmstead v. United States, 277 U.S. 438, 471-76 (1928) (Brandeis, J., dissenting), overruled in part by Katz v. United States, 389 U.S. 347, 352-53 (1967). Of course, the Harvard Law Review article co-authored with Samuel Warren previewed the arguments in the Olmstead dissent. See Warren & Brandeis, supra note 180.

[FN401]. James Bradley Thayer made this point long ago. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 137 n.1, 156 (1893).

[FN402]. See Blasi, supra note 193, at 555-67.

[FN403]. Edward R. Murrow and the team of Woodward and Bernstein are two such icons.

60 U. Pitt. L. Rev. 745

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