Reasonable Expectations of Privacy for Youth in a Digital Age
Catholic University of America (CUA)
March 1, 2011
Mississippi Law Journal, Vol. 80, No. 3, pp. 1033-1092, 2011
CUA Columbus School of Law Legal Studies Research Paper No. 2011-4
In this digital age, individuals and society as a whole struggle to balance the advantages of digital connectivity against the reality that this very connectivity inevitably gives others access, licitly or illicitly, to private information. Youth, in particular, bring a new dimension to this issue with their concept of privacy. While risks to privacy are certainly not limited to youth, an argument can be made that conceptualizations of privacy for those who have grown up with this technology are unique. One could further argue that as a group, youth possibly demonstrate distinct expectations of privacy when compared with older generations.
This article concerns the intersection of youth, technology, expectations of privacy, and the Fourth Amendment. More specifically, the article examines whether this norm of conditioned increased information disclosure, combined with decreased privacy rights for students, effectively strips or compromises the Fourth Amendment protections of a class of people - youth.
This article seeks to explore a Fourth Amendment issue never before faced. What is society to do when a large subset of citizens, as a result of social or technological conditioning and not government action, demonstrates an arguably lesser expectation of privacy? Part I of this article examines data regarding digital natives and their interaction with current technologies. Part II reviews current law regarding expectations of privacy in general, under the Katz test and more specifically, for public school students, under New Jersey v. T.L.O. and Safford Unified School District v. Redding. The article further reviews what guidance the Court has offered in situations where the familiar two-pronged Katz test is not useful. Part III reviews possible solutions to this problem, calling into question the utility of the Katz test. The article explores whether a more value-laden approach outlined by Justice Harlan in his dissent in United States v. White may offer a more promising solution than the traditional Katz analysis. Because the jurisprudence addressing searches of public school students in a school setting is developing, Part IV applies the different approaches offered by the Court to a hypothetical modification of the facts in Redding. Suppose instead of the virtual strip search, school officials had seized her cell phone and examined its digital contents. This article explores that scenario and concludes that, for several reasons, the Supreme Court‘s current approach to applying the Fourth Amendment is inadequate to sufficiently address the issues presented in this all-too-common scenario. It further argues that the proposal of Justice Harlan in his White dissent offers the most promise.
Number of Pages in PDF File: 61
Date posted: March 30, 2011 ; Last revised: January 3, 2013