Page 69 - Privacy in a Cyber Age Policy and Practice

54 PRIVACY IN A CYBER AGE

and are subject to majority rule, the United States counts noses. That is,
each person has a vote—whether or not the person is reasonable. Katz
is decided without any actual votes by the public; the people’s views are
merely divined.
In short, Katz is either a convenient fiction or a serious violation of the
most basic principles of our polity and should be allowed to expire, the
sooner the better.

5. Two Is Less Than One

Originally, the Katz test consisted of two “prongs” used jointly to determine
whether a “reasonable expectation of privacy” existed. In the words of Jus-
tice Marshall Harlan, “[T]here is a twofold requirement, first that a person
have [sic] exhibited an actual (subjective) expectation of privacy and, sec-
ond, that the expectation be one that society is prepared to recognize as
‘reasonable.’” Of course, such a dual standard raises the question: what is a
court to do when the two standards conflict? If the courts ignore the first
standard on the grounds that every defendant will claim an expectation of
privacy in the matter at hand—why introduce two prongs in the first place?
In practice, courts have increasingly ignored the first prong as a “practical
matter,” for “defendants virtually always claim to have a subjective expec-
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tation of privacy” and such claims are difficult to disprove. Thus, David
Cunis notes that the Court “summarily dismissed” the first prong of the
Katz test in California v. Greenwood, California v. Ciraolo, Oliver v. United
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States, and Maryland v. Smith. Thus, the expectation of privacy test relies
almost exclusively on an objective determination of society’s “reasonable”
expectations. Among all Katz’s flaws, this two-pronged approach is a rela-
tively minor one; it merely adds one more reason to allow this legal concept
to fade away.

6. Katz Is Confronted by the Cyber Age

The reasonable expectation of privacy standard is further undermined by
recent technological developments. The rise of social media, Facebook in
particular, is a prime example of this trend. Originally intended and pro-
moted as a social networking tool for college students, Facebook’s privacy
implications have expanded in line with its broadening user base and func-
tionality. There are numerous documented instances of employees being
fired over material they, not expecting to share it with their employer,
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had posted on Facebook. A 2012 survey found that more than a third
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of employers use Facebook and similar sites to screen candidates, while