CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, July 6, 2012

Selbst on Contextual Expectations of Privacy

Andrew D. Selbst (New York University (NYU) - School of Law) has posted Contextual Expectations of Privacy on SSRN. Here is the abstract:

The last decade of privacy scholarship is replete with theories of privacy that reject absolute binaries such as secret/not secret or inside/outside, instead favoring approaches that take context into account to varying degrees. Fourth Amendment doctrine has not caught up with theory, however, and courts continue to employ discredited binaries to justify often contradictory conclusions. Even when courts venture outside the binaries, as the concurring justices did when addressing GPS tracking in United States v. Jones, they clearly lack the language and the framework with which to discuss complicated privacy issues that defy binary description. While some Fourth Amendment cases reveal the influence of contextual thinking, courts have rarely included an explicit commitment to context in their opinions. I believe that such a commitment would improve both the internal consistency and individual case outcomes of the Fourth Amendment.

The theory of contextual integrity, which characterizes a right to privacy as the preservation of expected information flows within a given social context, offers a method for injecting context into the conversation. Grounded, as it is, in context-based normative expectations, the theory offers a useful interpretive framework for Fourth Amendment search doctrine, and a language with which to discuss privacy violations based on unexpected information flows. This Article seeks to reexamine the meaning of a “reasonable expectation of privacy” under the theory of contextual integrity, and in doing so accomplish three goals: 1) create a picture of Fourth Amendment doctrine if the Katz test had been interpreted this way from its inception, 2) demonstrate that context can be an organizing principle of the Fourth Amendment, by drawing connections between seemingly disjoint doctrines, and 3) illustrate the mechanism of applying contextual integrity to a Fourth Amendment search case, with the intent of helping both theorists and practitioners in future cases, particularly those involving new technology.

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