Given my opposition to Orin Kerr’s “technology neutral approach” to the application of search and seizure law to technological advancement, largely due to my belief that the 4th Amendment is a bundle of exceptions in search of rule, and that Orin’s approach will leave us with no meaningful protection at all, the question remains: If not tech neutral, then what?
In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) The Coverage Question – Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question – How should the Fourth Amendment regulate this form of government information gathering? The Coverage Question should be easy to answer: The Fourth Amendment should regulate whenever government information gathering creates problems of reasonable significance. Such a scope of coverage would be broad, and the attention wasted on the Coverage Question would be shifted to the Procedure Question. This pragmatic approach to the Fourth Amendment is consistent with its text and will make Fourth Amendment law coherent and comprehensive.
Step one is the tossing out of Katz’s “reasonable expectation of privacy” foundation, which Dan calls a “fruitless game.” He explains further in his introduction.
For a long time, I believed that with the appropriate understanding of privacy—one that is well-adapted to modern technology, nimble and nuanced, forward-looking and sophisticated—Fourth Amendment jurisprudence could be rehabilitated. I now realize I was wrong.
The entire debate over reasonable expectations of privacy is futile, for it is not focused on the right question. . . . We should sidestep the contentious debate about expectations of privacy—or about any other specific value as a trigger for Fourth Amendment protection. Instead, whenever a particular government information gathering activity creates problems of reasonable significance, the Fourth Amendment should require regulation and over-sight.
Having omitted a rather tedious analogy, it appears that Dan’s point is that expectation of privacy, “or about any other specific value as a trigger,” is subject to contentious debate. While true, it doesn’t explain why it’s the wrong question. Worse still, he merely swaps it out for a different phrase, Dan’s idea of a better trigger, “problems of reasonable significance.”
Application of the reasonable expectation of privacy test is increasingly difficult in a time of huge technological advancement. The fact that ordinary people have little idea of what does on inside all the electronics that they use daily, where they think things like their emails, text messages and IMs are private, but the harsh reality is that they fall fairly clearly within one of the many exceptions, renders the test unworkable. This gives rise to my problems with Orin’s approach, in that exceptions developed for bootleggers strain public expectations today. Essentially, our subjective expectations may be just as strong, but it’s just not objectively reasonable in light of technology, which has the power to access every aspect of our lives without the physical intrusion that was needed in the past.
But then, substituting a test that has some modicum of meaning for a test that is wholly incomprehensible, doesn’t move us away from the problem. What is meant by “problems of reasonable significance?” Who knows? To whom is the problem significant? There’s likely to be a wide divergence between the individual’s idea and the government’s. Dan supposed that it would be broad and inclusive, covering a large swathe of our life. I suppose that’s largely up to whoever gets to define this totally amorphous phrase. Given the history of both legislative and judicial definition of areas into which the police are given a free pass, Dan’s expectation may be a bit rosy.
It’s certainly encouraging for lawprofs like Dan to give some hard thought to alternative ways to frame 4th Amendment issues going forward, as we’re now on a trajectory that will provide no privacy whatsoever as we embrace each hour’s new technology, with all its shiny bells and whistles, without giving a second thought to how its use sends our private information to a computer somewhere in the bowels of the FBI building. It won’t be easy, however, to come up with a paradigm that works.
We are currently trying to jam square pegs into round holes, with the closest viable analogy substituting for legitimate protection of our privacy. This results in applying the rubric despite the rationale having absolutely nothing to do with the purposes for which the police are relieved of the obligation to obtain a warrant before accessing our private information. While the issue of the moment is GPS tracking devices placed on cars, we need to stop trying to fix the problems one device at a time as new technology is developing at such a rapid pace that each bit of tech will be like a horse and buggy by next week.
We need a viable framework that protects us from intrusion. Another approach, what Orin calls the Mosaic theory, and seems to me to be a variation on the “totality of the circumstances” approach that federal courts have long used to reach any result they want, seems to serve as a line in the sand beyond which even federal judges are just disgusted with the level of intrusion into personal privacy. And yet, it’s essentially an abdication of the warrant clause until it reaches the point of unbearable disgust. My hope is that we have a bit of protection before that point.
Dan Solove should be applauded for thinking outside the box, trying to resurrect the moribund concept of freedom from the government’s nose sticking into our undergarments (there’s an image for you), with his reasonable significance approach in lieu of a reasonable expectation of privacy. While the latter has its issues, at least it’s a phrase that offers some clue as to what’s covered. But that doesn’t mean there isn’t a better approach out there, and it’s encouraging that there are people out there trying to find it.