CrimProf Blog

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

Friday, June 5, 2020

Netniss on Privacy and the Fourth Amendment

Chris Netniss (Loyola of Los Angeles Entertainment Law Review) has posted Attempts Towards a Zero-Sum Game: A Recurring Imbalance between Individual Privacy and the Fourth Amendment (40 Loy. LA. Ent. L. Rev. 1 (2019)) on SSRN. Here is the abstract:
The digital era we live in today allows society to work, shop, socialize, and even monitor one’s health without having to leave the confines of one’s home. In a recent landmark privacy case, Carpenter v. United States, the individual privacy implications of the Fourth Amendment were strengthened when the Supreme Court held that the government must generally obtain a warrant before collecting more than six days of historical cell-site location information from a third-party service provider, like Verizon. Cell-site location information could implicate numerous Fourth Amendment concepts, such as the third-party doctrine, mosaic theory, and public exposure doctrine. Refusing to apply the third-party doctrine in its existing state, the Supreme Court advanced an alternative digital third-party doctrine to protect historical cell-site location information.

Recognizing the technological advances and the ubiquitous use of technology by society, the Court’s decision attempts to balance the playing field between individual privacy and law enforcement. This Article explores the Supreme Court’s selective valuation of privacy in physical and digital information. In doing so, this Article argues that a digital third-party doctrine will not resolve the tension between the Fourth Amendment and technology, as it is a direct departure from traditional expectations and proves unworkable. What will prove workable, however, is adhering to the common understanding that what enters the public — either through physical or digital information — remains public knowledge, and that which is public knowledge does not amount to a reasonable expectation of privacy.

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