The Privacy Privilege: Law Enforcement, Technology and the Constitution

Posted: 9 May 2003

See all articles by Susan W. Brenner

Susan W. Brenner

University of Dayton - School of Law

Abstract

Entitled "The Privacy Privilege: Law Enforcement, Technology and the Constitution," this article considers how the Fourth Amendment's protection of privacy should be operationalized in a culture where so much human activity is carried out via technology. The article develops a theory of "mediated communication" and shows how Fourth Amendment doctrines evolved to accommodate the privacy of earlier types of mediated communication, e.g., written, telegraphic and telephonic communication. It then considers how the Fourth Amendment should evolve to accommodate computer-mediated communication.

The article argues for construing the Fourth Amendment's privacy protections as a privilege, not a right; it explains that the difference between the two lies in the source of the obligation to ensure a legal guarantee. The obligation to implement certain guarantees ("rights") is assigned to the government because it is in the best position to do this; this is true, for example, of the Sixth Amendment right to counsel and the right to due process. The obligation to implement other guarantees ("privileges") is assigned to individuals because the nature of these protections makes it reasonable to require individuals to claim them. As the article explains, construing the Fourth Amendment protection of privacy as a privilege simply means one must take steps to invoke Fourth Amendment privacy before the protections will apply . . . just as one must invoke the Fifth Amendment privilege against self-incrimination for it to be effective.

The article explains that this approach to privacy is implicit in the history and structure of the Fourth Amendment, not to mention the Katz test, which is currently the governing standard for determining whether government conduct implicates Fourth Amendment protections.

Keywords: Fourth Amendment, cybercrime, computer crime, privacy, search and seizure

JEL Classification: K4

Suggested Citation

Brenner, Susan W., The Privacy Privilege: Law Enforcement, Technology and the Constitution. Journal of Technology Law and Policy, Vol. 7, 2002. Available at SSRN: https://ssrn.com/abstract=402420

Susan W. Brenner (Contact Author)

University of Dayton - School of Law ( email )

300 College Park
Dayton, OH 45469
United States
937-229-2929 (Phone)
937-229-2469 (Fax)

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