CrimProf Blog

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

Friday, February 26, 2021

Silver on Electronic Transactional Information

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:

The U.S. Supreme Court's decision in Carpenter v. United States recognizes that information's sensitivity may serve as the basis for a person's reasonable expectation of privacy in that information -- and thus its protection under the Fourth Amendment -- notwithstanding the Third-Party Doctrine. But an examination of the Court's rationale shows that the majority merely evaluated the case's factual context by balancing the government's burden of obtaining a warrant against the petitioner's privacy interests; and, in doing so, it placed significant weight on whether the government's warrantless acquisition of location data fell within the "mischief which gave [the Fourth Amendment] birth."

More interesting, however, is what the Court's choice to use such a balancing test in the first place reveals.
Before Carpenter, those who rebuked modern Fourth Amendment jurisprudence as having ruinous effects on privacy rights would likely have had an ally in the "reasonable expectation of privacy" test's principal architect, Associate Justice John Marshall Harlan II. By exploring Justice Harlan's jurisprudence and what it reveals about his views on individual privacy, this Note demonstrates that he meant for the "reasonable expectation of privacy" test to balance the government's burden in first obtaining a warrant against the chilling effect on the reasonable person, the wisdom of which was vindicated by the Carpenter majority.

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.

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