Abstract

http://ssrn.com/abstract=2374389
 


 



Katz on a Hot Tin Roof: The Reasonable Expectation of Privacy Doctrine is Rudderless in the Digital Age, Unless Congress Continually Resets the Privacy Bar


Charles E. MacLean


Indiana Tech Law School; Indiana Tech - Law School

September 9, 2013

Albany Law Journal of Science and Technology, Vol. 24, No. 1, 2014, Forthcoming (this is a working draft)

Abstract:     
Technology evolves so quickly now, while courts plod along trying to force-fit new digital advancements into old precedents. Those old precedents never quite fit. But Congress, that need not await a case or controversy, and therefore can act much more quickly as or even before technological advancements emerge, can enliven the Katz reasonable expectation of privacy doctrine by resetting the privacy bar. After all, if Congress were to make a specific digital mining approach illegal, we all would have a reasonable expectation of privacy in that protected material, no matter how easy it might be for computer programmers, internet marketers, ISPs, or government agencies to access and store that material. If Congress is proactive, as exemplified by the EU approach, Courts do not have to analogize new technologies to pagers or telephone booths to determine whether the subject enjoys objective and subjective expectations of privacy in that new technology. Thus, the reasonable expectation of privacy doctrine is rudderless in the digital age – unless Congress continually steps in to reset that privacy bar.

This article (1) provides an abbreviated history of constitutional privacy protection and the Katz reasonable expectation of privacy doctrine, (2) assesses the impact of technology (and user agreements) on reasonable expectations of privacy, and (3) posits some legislative and court-driven alternatives to the Katz reasonable expectation of privacy doctrine in the digital age. Although there have been a number of commentators focusing on courts’ tenuous grasp on reasonable expectation of privacy in the digital age, the author is among the few suggesting the solution’s core lies almost entirely in the legislative branch, and does not predominantly lie in the courts.

Number of Pages in PDF File: 34

Keywords: Fourth Amendment, Technology, Privacy, Stare Decisis

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Date posted: January 4, 2014 ; Last revised: February 17, 2014

Suggested Citation

MacLean, Charles E., Katz on a Hot Tin Roof: The Reasonable Expectation of Privacy Doctrine is Rudderless in the Digital Age, Unless Congress Continually Resets the Privacy Bar (September 9, 2013). Albany Law Journal of Science and Technology, Vol. 24, No. 1, 2014, Forthcoming (this is a working draft). Available at SSRN: http://ssrn.com/abstract=2374389

Contact Information

Charles E. MacLean (Contact Author)
Indiana Tech Law School ( email ) ( email )
1600 E. Washington Blvd.
Ft. Wayne, IN 46803
United States
Indiana Tech - Law School ( email ) ( email )
1600 E. Washington Blvd.
Ft. Wayne, IN 46803
United States
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