Code 2.0

Wired, February 2, 2001., available at http://www.wired.com/news/politics/0,1283,41571,00.html (cached: http://www.webcitation.org/5J6ilfWpR).

9.

C-VIS, 'What is Face Recognition Technology?', available at http://www.c-vis.com/htd/frt.html (cached: http://www.webcitation.org/5J6ioUCzl). For an argument that face recognition technology should be seen to violate the Fourth Amendment, see Alexander T. Nguyen, 'Here's Looking at You, Kid: Has Face-Recognition Technology Completely Outflanked The Fourth Amendment?' Virginia Journal of Law and Technology 7 (2002): 2.

10.

See Face Recognition Vendor Test Home Page, available at http://www.frvt.org/ (cached: http://www.webcitation.org/5J6irWXsg).

11.

Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: Random House, 2004), 34–53.

12.

Lawrence Lessig, 'On the Internet and the Benign Invasions of Nineteen Eighty-Four,' in On 'Nineteen Eighty-Four': Orwell and Our Future, Abbott Gleason, Jack Goldsmith, and Martha C. Nussbaum eds. (Princeton: Princeton University Press, 2005), 212.

13.

We've learned that the Defense Department is deeply involved in domestic intelligence (intelligence concerning threats to national security that unfold on U.S. soil). The department's National Security Agency has been conducting, outside the framework of the Foreign Intelligence Surveillance Act, electronic surveillance of U.S. citizens within the United States. Other Pentagon agencies, notably the one known as Counterintelligence Field Activity (CIFA), have, as described in Walter Pincus's recent articles in the Washington Post, been conducting domestic intelligence on a large scale. Although the CIFA's formal mission is to prevent attacks on military installations in the United States, the scale of its activities suggests a broader concern with domestic security. Other Pentagon agencies have gotten into the domestic intelligence act, such as the Information Dominance Center, which developed the Able Danger data-mining program. Richard Posner, 'Our Domestic Intelligence Crisis,' Washington Post, December 21, 2005, at A31.

14.

Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: Random House, 2004), 34–53.

15.

See American Civil Liberties Union, 'The Government is Spying on Americans,' avail able at http://www.aclu.org/safefree/spyfiles/index.html (cached: http://www.webcitation.org/5J6lPPpEB).

16.

See Minnesota v. Dickerson, 508 US 366, 381 (1993) (Justice Antonin Scalia concurring).

17.

See, for example, William J. Stuntz, 'Privacy's Problem and the Law of Criminal Pro cedure,' Michigan Law Review 93 (1995): 1016, 1026; in 'The Substantive Origins of Criminal Procedure,' Stuntz discusses the origins of the Fourth Amendment.

18.

Stuntz, 'Privacy's Problem and the Law of Criminal Procedure,' 1026.

19.

Alien and Sedition Acts of 1798, Act of June 18, 1798, ch. 59, 1 Stat. 566 (repealed 1802), Act of June 25, 1798, ch. 63, 1 Stat. 570 (expired); Act of July 6, 1798, ch. 70, 1 Stat. 577 (expired), Act of July 14, 1798, ch. 77, 1 Stat. 596 (empowering the president to deport anyone he deems dangerous to the country's peace and safety) (expired). The Alien and Sedition Acts were declared unconstitutional in New York Times Co. v. Sullivan, 376 US 254, 276 (1964), though, of course, by then their terms they had expired. See Neal Devins, Constitutional Values (Baltimore: Johns Hopkins University Press, 1996), on overruling (13); and James Morton Smith, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, N.Y.: Cornell University Press, 1956), on the history, enforcement, and impact of the Alien and Sedition Acts.

20.

Stuntz, 'Substantive Origins,' 395.

21.

See Cass Sunstein, Legal Reasoning and Political Conflict (Oxford University Press, 1996), 35–61.