some themes today

For all of the high-level discussion of fourth amendment doctrine today, a couple of more concrete themes have struck me as particularly salient today:

First, what is the effect of government monitoring on the average citizen? Is a particular form of government monitoring something individuals see as being "creepy," in the words of private practitioner Edward Swanson? (In cases where they do, it was argued, people will alter their usage habits.) Should we, as Prof. Slobogin argued, take a descriptive rather than normative approach to the "reasonable expectation of privacy," and utilize data about the police practices that people find the creepiest? In the same vein, Nicky Ozer wondered aloud if the public doesn't care, but we think they should, how we can get them to make informed choices about privacy.

Another surprisingly recurrent point today was the role of class and socioeconomic differences. Professor Weisberg just succinctly summarized many of the digital privacy topics discussed today by declaring: "these are bourgeouis concerns!" He as well as Professor Natapoff suggested that the scare value, for the middle and upper class public, may result in a push that may increase privacy protection for everyone, including the poorest accused criminals who routinely rely on Fourth Amendment protection in suppression hearings. Professor Dripps noted similar concerns in his comments to Ohm's Seizure Clause draft, characterizing this debate as "upper-class-privacy-interests vs. upper-class-national-security-concerns." When I asked him about it over lunch, he conceded that this may in part be a function of time, as technology becomes cheaper and its use becomes more commonplace among all sectors of society.

This second point is broader than just an issue of socioeconomic differences. Professor Weisberg, in particular, did a great job of putting this symposium and its issues in perspective. He insightfully observed that what are lumped as "Fourth Amendment" issues actually cover a range of other concerns: free speech issues; safety and security issues; financial harms. If we are going to fashion new rules, we should be clear why we are doing so.