Page 64 - Privacy in a Cyber Age Policy and Practice

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Eight Nails into Katz’s Coffin

he U.S. courts keep drawing on Katz v. United States in their rulings
Tabout whether or not privacy has been violated, which, from a social
science viewpoint, is difficult to comprehend. The case is clearly based on
untenable sociological and psychological assumptions. Moreover, many
fine legal scholars have laid out additional strong reasons that establish
beyond a reasonable doubt that it is unreasonable to draw on “the
reasonable expectation of privacy” as a legal concept. Continuing to draw
on this concept, especially in the cyber age, undermines the legitimacy of
the courts and hence of the law. This chapter reviews these arguments in
order to further nail down the lid on Katz’s coffin so that this case—and the
privacy doctrine that draws on it—can be allowed to rest in peace.

1. Katz Is Tautological

The reasonable expectation of privacy standard is tautological and circu-
lar. Both the individual and the societal expectations of privacy depend
on judicial rulings—and judges, in turn, use these expectations as the
bases for their rulings. Mr. Katz had no reason to assume a conversation
he conducted in a public phone booth would be considered private or
not until the court ruled that he had such an expectation. In other words,
when the court holds that it heeds the vox populi—it actually follows the
echo of its own voice. Several leading legal scholars find Katz’s tautologi-
cal nature highly problematic. Richard Posner, for example, notes that
“it is circular to say that there is no invasion of privacy unless the indi-
vidual whose privacy is invaded had a reasonable expectation of privacy;
whether he will or will not have such an expectation will depend on what
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the legal rule is.” Richard A. Epstein maintains that it is “all too easy
to say that one is entitled to privacy because one has the expectation of