Friday, February 26, 2021
Zachary Silver has posted Katz in the Cradle: The Second Justice Harlan and Reasonable Expectations of Privacy in Electronic Transactional Information (Cardozo Law Review, Vol. 41, No. 2, p. 761, 2019) on SSRN. Here is the abstract:
More interesting, however, is what the Court's choice to use such a balancing test in the first place reveals.
Part I traces the legal protections in the criminal investigations context against the government's obtaining evidence that reveals sensitive information, from its colonial roots through today, highlighting Supreme Court decisions involving then-cutting-edge technologies to illustrate how the tensions between property- and privacy-based approaches to the Fourth Amendment gave birth to and expanded the Third-Party Doctrine. Part II analyzes how contemporary advances in technology complicate and make a broad Third-Party Doctrine unfeasible.
Part III sketches a framework of the second Justice Harlan's conception of the Fourth Amendment's protections and how reasonable expectations of privacy should be determined. This Part first analyzes Justice Harlan's concurrence in Katz v. United States, illuminated by his judicial philosophy and other privacy-related opinions, to demonstrate his belief that the Fourth Amendment requires the government to get a warrant unless the burden of doing so outweighs the potential chilling effect of acquiring the reasonable person's sensitive information. It then argues that adhering to this framework would benefit individual privacy without unduly burdening criminal law enforcement efforts, and that doing so provides the flexibility needed to protect privacy rights as technology and society evolve.