On May 24, 1844, a crowd gathered inside the United States Supreme Court chambers in the basement of the Capitol, eagerly awaiting a demonstration of an amazing new communication technology. They watched as inventor Samuel F.B. Morse successfully sent the first long-distance telegraph message — “What hath God wrought?” — to a railroad station near Baltimore. While earlier demonstrations of the device had successfully sent messages between the House and Senate chambers, long-distance transmission was still an open question. Congress had provided $30,000 to underwrite Morse’s successful
Technological change inevitably presents new tools for the criminally minded. Law enforcement necessarily responds by using that same technology to develop new investigative tools to combat crime. In turn, the legislative and judicial branches adapt the law to the new technology to ensure that the proper balance is maintained between security and liberty.
Unfortunately, there is often a significant lag time between the arrival of new law enforcement technologies and the laws regulating their use. Moreover, the regulatory responses of the legislative and judicial branches are typically not well coordinated, significantly adding to the time delay before a fully formed regulatory scheme is in
1. See generally First Telegraph Messages from the Capitol, U.S. Senate (May 2018), https://www.senate.gov/artandhistory/history/minute/First_Telegraph_Messages_from_the_Capitol.htm[https://perma.cc/3WHW-SPHV].
2. See generally Susan Freiwald, Online Surveillance: Remembering the Lessons of the Wiretap Act, 56 Ala. L. Rev. 9, 79–83 (2004) (describing the history of the regulation of wiretapping and modern electronic surveillance); see also Neil Richards, The Third Party Doctrine and the Future of the Cloud, 94 Wash. U. L. Rev. 1441, 1447–65 (2017) (chronicling “the ‘Fourth Amendment lag problem,’” id. at 1448).