Saturday, January 4, 2014

Katz on a Hot Tin Roof: The Reasonable Expectation of Privacy Doctrine is Rudderless in the Digital Age, Unless Congress Continually Resets the Privacy Bar

The title of this post comes from this recent paper by Professor Charles E. MacLean arguing that Congress ought to take action to ensure that the reasonable expectation of privacy doctrine does not erode as technology advances. Here's the abstract:

Technology evolves so quickly now, while courts plod along trying to force-fit new digital advancements into old precedents. Those old precedents never quite fit. But Congress, that need not await a case or controversy, and therefore can act much more quickly as or even before technological advancements emerge, can enliven the Katz reasonable expectation of privacy doctrine by resetting the privacy bar. After all, if Congress were to make a specific digital mining approach illegal, we all would have a reasonable expectation of privacy in that protected material, no matter how easy it might be for computer programmers, internet marketers, ISPs, or government agencies to access and store that material. If Congress is proactive, as exemplified by the EU approach, Courts do not have to analogize new technologies to pagers or telephone booths to determine whether the subject enjoys objective and subjective expectations of privacy in that new technology. Thus, the reasonable expectation of privacy doctrine is rudderless in the digital age – unless Congress continually steps in to reset that privacy bar.

This article (1) provides an abbreviated history of constitutional privacy protection and the Katz reasonable expectation of privacy doctrine, (2) assesses the impact of technology (and user agreements) on reasonable expectations of privacy, and (3) posits some legislative and court-driven alternatives to the Katz reasonable expectation of privacy doctrine in the digital age. Although there have been a number of commentators focusing on courts’ tenuous grasp on reasonable expectation of privacy in the digital age, the author is among the few suggesting the solution’s core lies almost entirely in the legislative branch, and does not predominantly lie in the courts.

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