Katz is Dead. Long Live Katz.

Abstract

United States v. Katz is the king of Supreme Court surveillance cases, famous for announcing the "reasonable expectation of privacy" test that is designed to protect personal privacy and limit intrusive searches. This essay comments on a forthcoming article by Professor Orin Kerr. Professor Kerr in an excellent article shows how this view of Katz fits badly with how courts actually apply the Fourth Amendment to electronic surveillance and other new technology. In this essay, I show how Professor Kerr actually understates the demise of Katz.

Professor Kerr has correctly shown how the traditional property approach has persisted where it helps the government, such as by finding that many kinds of surveillance are not "searches" under the Fourth Amendment. This essay adds the insight that the property regime has actually been abandoned in other respects since 1967, in ways that have dramatically aided government surveillance. The 1967 abolition of the "mere evidence" rule has greatly expanded the government's ability to gain access to the private papers and other information of individuals.

Examination of the case law under the "mere evidence" rule and of new developments in telephone technology leads to a second insight. Changing technology means that many telephone calls are likely to be subject to routine recording in the near future. Because the Supreme Court has been so supportive of government access to stored records, Katz may soon be dead on its own facts.

If Katz is dead (or nearly so), what should be done? Professor Kerr appears to welcome the demise of Katz. He argues at length that Congress can do a better job than the courts at creating the law for high-tech surveillance. This essay criticizes that view, showing reasons for Fourth Amendment doctrine to continue to play a role in governing electronic surveillance and other high-tech searches.

The end of Katz, perhaps even on its own facts, invites us to consider what alternative approaches the courts might use in structuring a good regime for high-tech surveillance by the government. This essay sketches some of the substantive doctrines that courts might workably enforce in defining Fourth Amendment searches. It then explores in some detail the possibility that the courts can work collaboratively with the elected branches to ensure that there are reasonable procedures in place. The new regime would uphold the rule of law, with reasonable procedures specified in advance. This approach would give both the courts and the elected branches their appropriate role for important categories of searches, such as those involving emerging technologies, new types of surveillance, and complex record-keeping systems.