Page 206 - Privacy in a Cyber Age Policy and Practice

194 NOTES

Chapter 3
1. Richard A. Posner, “The Uncertain Protection of Privacy by the Supreme
Court,” Supreme Court Review (1979): 188.
2. Richard A. Epstein, Principles for a Free Society: Reconciling Individual Liberty
with the Common Good (New York: Basic Books, 1998).
3. Anthony G. Amsterdam, “Perspectives on the Fourth Amendment,” Minnesota
Law Review 58 (1974): 349, 384.
4. Jed Rubenfeld, “The End of Privacy,” Stanford Law Review 61 (2008): 106.
5. Richard H. Seamon, “Kyllo v. United States and the Partial Ascendance of
Justice Scalia’s Fourth Amendment,” Washington University Law Quarterly
79 (2001): 1023–4.
6. Ibid.
7. Kyllo, 121 Supreme Court at 2043.
8. Shaun B. Spencer, “Reasonable Expectations and the Erosion of Privacy,”
Washington Law Review 79 (2004): 119; see also Marissa A. Lalli, “Spicy Little
Conversations: Technology in the Workplace and a Call for a New Cross-
doctrinal Jurisprudence,” American Criminal Law Review 48 (2011): 243. Lalli
argues that, given the “growing popularity of employer-provided personal
communication devices” of ambiguous shared ownership between employee
and employer, the “expectation of privacy” standard undermines the protec-
tion of individuals from unreasonable search and seizure by institutions).
9. Ibid. 860.
10. Jed Rubenfeld, “The End of Privacy,” Stanford Law Review 61 (2008): 101.
11. Erwin Chemerinsky, “Rediscovering Brandeis’s Right to Privacy,” Brandeis Law
Journal 45 (2006–2007): 643; see also Raquel Aldana, “Of Katz and ‘Aliens’:
Privacy Expectations and the Immigration Raids,” U.C. Davis Law Review
41 (2007–2008): 1088. Aldana argues that “immigrants have become so regu-
lated that any Katz expectation of privacy [for immigrants] to occupy spaces in
silence without detection becomes unreasonable.”
12. Richard S. Julie, “High-tech Surveillance Tools and the Fourth Amendment:
Reasonable Expectations of Privacy in the Technological Age,” American Crim-
inal Law Review 37 (2000): 127.
13. This view relies in part Justice Rehnquist’s statement in Rakas v. Illinois (439
U.S. 144 n.12) that “legitimation of expectations of privacy by law must have
a source outside of the Fourth Amendment,” either by “reference to concepts
of real or personal property law or to understandings that are recognized and
permitted by society.” Empirical data would be used to shed light on the latter.
14. Christopher Slobogin and Joseph E. Schumacher, “Reasonable Expectations
of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look
at Understandings Recognized and Permitted by Society,” Duke Law Journal
42 (1993): 757.
15. Henry F. Fradella et al., “Quantifying Katz: Empirically Measuring ‘Reasonable
Expectations of Privacy’ in the Fourth Amendment Context,” American Journal
of Criminal Law 38 (2010–2011): 293–94.