Abstract

http://ssrn.com/abstract=2433178
 


 



Too Much Information: How Not to Think About Privacy and the Fourth Amendment


David Alan Sklansky


Stanford Law School

May 9, 2014

California Law Review, Forthcoming

Abstract:     
Fourth Amendment law today is overloaded with information: not just in the sense that the explosive growth of digitized information requires rethinking traditional rules of search and seizure, but also and more importantly in the sense that a preoccupation with data flows has led to the neglect of important dimensions of privacy. There is no doubt that the control of personal information is an important value and one uniquely threatened by the rise of social media, by the proliferation of technological surveillance, and by the arrival of Big Data. But the reduction of privacy to control over information has made it difficult to think sensibly about the distinctive threats posed by government searches, and it is partly to blame for the growing and unwarranted idea that the Fourth Amendment should be decoupled from privacy - an idea variously motivated by a belief that the concept of privacy is meaningless, by the fear that privacy is dead or dying, and by a sense that the main threats to privacy today are orthogonal to the chief dangers posed by law enforcement. Search and seizure law would be better served by an understanding of privacy rooted in respect for a zone of refuge and informed by privacy’s longstanding associations with enclothement, retreat, and personal sovereignty. This alternative conception of privacy - privacy as refuge - should also be attentive to the relational nature of privacy, the connection between privacy and civility, and the effects of privacy violations on the perpetrators as well as the victims.

Number of Pages in PDF File: 49

Keywords: Fourth Amendment, privacy, information, search and seizure

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Date posted: May 11, 2014  

Suggested Citation

Sklansky, David Alan, Too Much Information: How Not to Think About Privacy and the Fourth Amendment (May 9, 2014). California Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2433178

Contact Information

David Alan Sklansky (Contact Author)
Stanford Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
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