Trump v. New York, Clapper, and . . . the Fourth Amendment? How Inconsistent Doctrines are Under-Protecting Privacy

Abstract

This Article joins a chorus of scholarly work critiquing Fourth Amendment search doctrine—namely how the Court applies the “reasonable expectation of privacy” (REP) test—but it takes a unique approach by highlighting the doctrine’s inconsistency with recent Article III standing jurisprudence. We hope that holding the doctrines side-by-side will cast new light on the problems with Fourth Amendment privacy protections. Clapper v. Amnesty International and its progeny, including the recent decision in Trump v. New York, may not be a desirable line of cases—but they should have a positive externality to the extent they spur the Court to fix its Fourth Amendment REP doctrine.

Keywords: Criminal Procedure, Fourth Amendment, Search, Clapper, Article III, Standing, Reasonable Expectation of Privacy, knowing exposure, Trump v. New York

JEL Classification: K14, K23, K30, K40