Failing Expectations: Fourth Amendment Doctrine in the Era of Total Surveillance
39 Pages Posted: 30 Jul 2014 Last revised: 21 Jul 2015
Date Written: July 28, 2014
Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies.
This Essay argues that the reasonable expectation standard is particularly flawed if it has the effect of encouraging judges to seek guidance from legislatures on constitutional norms and principles. Judicial review is the vital antimajoritarian check against excessive government intrusions on individual liberty under our constitutional scheme. This is a responsibility that courts cannot pass off to the political branches when, as is the case today, most people expect that the cost of network connection is total surveillance. It is beyond irony that, today, courts consult public expectation to determine private entitlements. This Essays argues that court-administered privacy law doctrine must change if the protection against “unreasonable searches and seizures” is to have any positive legal meaning. The current court-created doctrine will not be able to keep up if it compels judges to measure public expectation. It is time for courts to reassert their positive duty to say what privacy law is.
Keywords: privacy, Fourth Amendment, deference, statutory interpretation, Internet, technology, communications
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