Page 66 - Privacy in a Cyber Age Policy and Practice

EIGHT NAILS INTO KATZ’S COFFIN 51

2. Katz Is Subject to Institutional Influence
The reasonable expectation of privacy standard is not only highly mal-
leable by the courts but also subject to influence by various institu-
tions. Statements made by elected officials, especially the president; laws
enacted by Congress; and normative positions developed by religious
authorities and public intellectuals all affect what people consider private
or an open book.
Along these lines, Shaun Spencer points out that the “expectation-
driven conception of privacy” facilitates the erosion of privacy overall by
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“large institutional actors.” That is because powerful institutions can influ-
ence the social practices that affect the expectations of privacy by “chang-
ing their own conduct or practices, by changing or designing technology
to affect privacy, or by implementing laws that affect society’s expectation
of privacy.” When employers monitor their employees’ computer use, for
example, they “diminish the expectation of privacy in the workplace,” and
when “merchants routinely sell consumers’ personal data, they diminish
the expectation of privacy in one’s transactional information.” 9
Jed Rubenfeld shows that the reasonable expectation of privacy test
would allow a simple government announcement that “all telephone calls
will henceforth be monitored” to deprive people of their “reasonable
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expectations of privacy in such calls,” retroactively justifying the decree.
Put simply by Erwin Chemerinsky, the government “seemingly can deny
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privacy just by letting people know in advance not to expect any.” Richard
Julie adds importantly that the ability of legislation and regulation to affect
the scope of the Fourth Amendment in this way violates “the core principle
of constitutional law, that the legislature may not alter the Constitution by
an ordinary statute.” 12
The fact that the vox populi is affected not only by the courts but also by
myriad other institutions hardly makes it a more reliable, trustworthy, or
independent criterion for determining a reasonable expectation of privacy.

3. Surveys to the Rescue?

Assuming judges try to live up to the standard they have set and seek to
figure out what reasonable people consider private beyond looking into
their own innards, to whom should they turn? There are some 318 million
Americans. Even if one excludes minors and others whose opinion, for one
reason or another, the law excludes, a very hefty number remains. There is
no reason, and even less evidence, to hold that they all will have the same
expectations.