The Fourth Amendment in the Information Age

Litt’s article focuses on finding new ways of conceptualizing privacy such that the current activities of intelligence agencies and law enforcement organizations are made legal, and thus shift the means by which their activities are legally and constitutionally evaluated. While his proposal to overturn much of the third-party doctrine coheres with the positions of many contemporary scholars his suggested replacement — that we should no longer focus on collecting data, but on use of collected data — would eviscerate basic privacy protections. In particular, I think that it’s important we not just ignore the ‘search’ aspect of fourth amendment law: we need to recalibrate what a search is within the context of today’s reality. And that doesn’t mean just letting the government collect with fewer baseline restrictions but instead modifying what a ‘search’ is itself.

The core aspects of the article that give a flavour of the entire argument are:

I suggest that—at least in the context of government acquisition of digital data—we should think about eliminating the separate inquiry into whether there was a “reasonable expectation of privacy” as a gatekeeper for Fourth Amendment analysis. In an era in which huge amounts of data are flowing across the Internet; in which people expose previously unimagined quantities and kinds of information through social media; in which private companies monetize information derived from search requests and GPS location; and in which our cars, dishwashers, and even light bulbs are connected to the Internet, trying to parse out the information in which we do and do not have a reasonable expectation of privacy strikes me as a difficult and sterile task of line-drawing. Rather, we should simply accept that any acquisition of digital information by the Government implicates Fourth Amendment interests.

After all, the concept of a “reasonable expectation of privacy” as a talisman of Fourth Amendment protection is not found in the text of the Fourth Amendment itself, which says merely that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It was only in 1967, in Katz, that the Supreme Court defined a search as the invasion of a “reasonable expectation of privacy.” Katz revisited Olmstead v. United States after 40 years; the accelerating pace of modern technological change suggests to me that fifty years is not too soon to revisit Katz. My proposal is that the law should focus on determining what is unreasonable rather than on what is a search.

What I have suggested, however, is that—at least in the area of government collection of digital data—we eliminate the preliminary analysis of whether someone has a reasonable expectation of privacy in the data and proceed directly to the issue of whether the collection is reasonable; that the privacy side of that analysis should be focused on concrete rather than theoretical invasions of privacy; and that courts in evaluating reasonableness should look at the entirety of the government’s activity, including the “back end” use, retention restrictions, and the degree of transparency, not just the “front end” activity of collection.