Misunderstanding Katz; Forgetting Smith

About a decade ago, it became clear that the Fourth Amendment framework for the physical world was going to present some problems when applied to the digital world. Some of the academics who ponder such things, like Dan Solove and Orin Kerr, tried to come up with competing theories and approaches that would produce an alternative to the two prevailing conflicts, the Katz Reasonable Expectation of Privacy Test and the Third-Party Doctrine.

In the intervening years, the Supreme Court has issued some good opinions, such as United States v. Jones and Carpenter v. United States, but hasn’t done much to address the doctrinal problem of privacy from government access in the digital age.

Some Supreme Court justices have been roundly (and often deservedly) mocked for their ignorance about basic everyday technologies, such as text messages and email. But one advantage to having an older, less tech-savvy judiciary is that their ideas about privacy were formed during an earlier era when it might well have been reasonable to expect that the police would not be able to obtain a week’s worth of detailed location information about you.

For all the justices lacked in savvy, at least they had a better grasp of the virtue of privacy from the government than do digital natives, who know in the back of their heads that they have given it all away but are just too busy on their iPhones to care.

For many people, especially those of us who grew up with ubiquitous location-tracking devices, to say nothing of ubiquitous large-scale data breachesClose X, that is no longer our expectation. Does that mean we lose our Fourth Amendment protections for the information we no longer expect to be secret?

Do ordinary folks thinks about, care about, what they give away routinely?

Today, our ideas about what is — and what should be — private are changing fast. As we routinely hand over more and more information about ourselves, our communications, our locations and our activities to tech companies, predicating our legal privacy protections on what we expect, rather than what we think people deserve or have a right to, is deeply problematic.

The more people learn about the privacy they give away, the less reasonable their expectation of it being private will be. And if they have no reasonable expectation of privacy, because op-eds in the New York Times tell them, and can subsequently be cited in the government’s papers as demonstrating that claims of privacy aren’t reasonable, because it said so in the papers, the less privacy will be protected.

But Josephine Wolff is a tech person, not a lawyer, so she can’t be expected to understand or appreciate the limits of her argument. Her fear is that a younger judiciary will have been weaned on the absence of digital privacy, and will take for granted that there is no Katz reasonable expectation left.

In March, the Senate confirmed Allison Rushing’s nomination as a judge on the Court of Appeals for the Fourth Circuit. At 36, she became the youngest federal judge in the country. In many ways, a younger and presumably more tech-savvy judiciary is a good thing for deciding cases that revolve around modern technologies. But at the same time, the Supreme Court and other courts have been reluctant to erode the Fourth Amendment’s protections for data like location information because it seems reasonable to them that people would expect that material to be private. They themselves expect it to be private. As that expectation shifts with a younger judiciary, then so too may those protections.

What’s missing from this concern is that the Third-Party Doctrine, which she attributes to United States v. Miller, a pedestrian decision relating to information everyone knew was in the hands of third parties, rather than the outcome-dependent decision in Smith v. Maryland, where the serious damage was done, is what undermines privacy in the digital age.

There’s been little concern with such banal issue as search and seizure since the academics became obsessed with Trumplaw after the deplorables elected Darth Cheeto to ruin our ascension to Nirvana, but these problems remain for those groundlings who still find themselves in the government’s clutches. It’s good that Wolff raises the questions, and that the New York Times finds real estate to publish them despite their lack of direct connection to sexism and racism.

Yet, the point raised in the op-ed misses the point, which is what one might expect when a non-lawyer writes about matters she doesn’t really understand.

If our privacy extends only as far as we expect it to, then as soon as we begin expecting companies to collect lots of data about us, we stand to lose our Fourth Amendment protections for that data. The frequent data breaches we are exposed to and the continuous analysis of our information for the purpose of serving us ads may not just be changing our attitudes and ideas about privacy. They may actually be changing our legal rights, simply by rewiring our expectations of how much control we have over our personal data.

The reach of the Fourth Amendment has little to do with our subjective expectations of privacy, despite the narcissistic Millennial notion that we each get to invent the law based on how we feel about it, because our feelings are important, but the objectively reasonable expectations of privacy. Our personal expectations don’t change our legal rights; our societal expectations do, and our societal expectations are that we have no privacy because every drop of personal information has long since been in Google’s, or Facebook’s, or Instagram’s, or Twitter’s, hands.

It’s cute to use words like “rewiring,” as it makes our expectations seem almost as tech-ish as our digital forfeiture of privacy, but it’s unavailing. The problem isn’t data breaches for Fourth Amendment purposes, even if it’s a reminder that our Trust in Zuck may be misplaced, but that a Third-Party Doctrine in a world where every iota of our lives is in someone else’s possession, is no longer a viable concept, if it ever was.

What we individually expect doesn’t matter. We know they have it, can snatch our privacy from us at will, and that the internet renders us incapable of saying “no” when the “I agree” button pops up. But for a trap and trace device, this wouldn’t be a Fourth Amendment problem. But back in 1979, we were more worried about catching criminals than the government having access to our lives. It was a bad decision back then, and we’re paying for it now.

6 thoughts on “Misunderstanding Katz; Forgetting Smith

  1. Richard Kopf


    I respectfully disagree. Smith made sense then and now under the Fourth Amendment. It maybe that the digital world warps the physical world such that the two are not easily distinguishable but should be for policy reasons. And I say, so what?

    The courts are not the place to seek the protection of our “privacy,” a word that is not found in the Constitution. If we want more privacy from the invasion of our digital lives, then Congress should provide the protection. We should not want–young or old–judges to cobble together a coherent digital structure for the protection of privacy. Trust me, if you leave privacy–rather than the Fourth Amendment–to judges we will screw it up. Again, I suggest that privacy and protections against unreasonable searches and seizures under the Fourth Amendment are two different Katzs.*

    All the best.


    *”[T]he Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’ That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all.” 389 U.S at 305 (footnotes omitted).

          1. Richard Kopf


            Since you used all caps, you shall have the last word.

            All the best.


            [Ed. Note: Actually, I see what you did here.]

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