I just finished reading Orin Kerr’s new article Searches and Seizures in a Digital World. While he articulates several particular policy recommendations, I was intrigued by his general approach. Basically, Kerr thinks the new world of computer search and seizures doesn’t map well onto Katz’s privacy-based inquiry (under the famous “reasonable expectation of privacy” test). Privacy, to Kerr, “is best seen as a vital byproduct of Fourth Amendment rules, not its goal” because it results when legal rules bar access, without addressing various uses (e.g., how investigators scan through the data). To Kerr, the Fourth Amendment more fundamentally “regulat[es] the information flow between individuals and the state,” for which the “digital world . . . is a particularly pure platform for the Fourth Amendment to operate: it offers an environment of pure data, and considers how the courts can limit and regulate law enforcement access to that data given the practical dynamics of how the data can be retrieved.”
I think scrapping the reasonable expectation of privacy might be a good move, though for different reasons. The most obvious problem with the test is its circularity: the expectation is itself defined by the contours of the law. Of course the legal standard injects normative values by stipulating that the expectation be “reasonable,” but this only ratchets one way, and the wrong way to boot. That is, it only defeats an expectation of privacy, it does not fill in where the expectation is absent. Due to this one-way ratchet, the scope of one’s reasonable expectation is virtually destined to shrink. It wouldn’t take much effort to push in the other direction (doctrinally, not politically, that is). One could simply ask whether this is a place where individuals should have an expectation of privacy. Of course, this standard should not succumb to case-by-case balancing. As within the context of the attorney-client privilege, the value of privacy depends upon guaranteed protection. Other than potentially expanding privacy protection, it also changes the terms of the debate. Rather than its current defensive posture (framed as something that thwarts law enforcement), we can affirmatively articulate the benefits of privacy as a political and social value.