Page 71 - Privacy in a Cyber Age Policy and Practice

56 PRIVACY IN A CYBER AGE

expectation of privacy” test in its current form threatens to “render the
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Fourth Amendment a practical nullity.” Whereas the Fourth Amendment
requires a warrant for surveillance of personal paper mail, for example,
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the third-party doctrine leaves e-mail without similar protection. This
impelled Congress to legislate protection for e-mail with the 1986 Stored
Communications Act, but advances in technology quickly rendered that
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law obsolete. Likewise, Peter Swire warns that increasing use of the
Internet, and thus third parties, to conduct phone calls may render the
“expectation of privacy” test ineffective even for phone call wiretapping—
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the original subject of the Katz ruling. In today’s era of “big data,” which
Craig Mundie points out is characterized by the “widespread and perpetual
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collection and storage” of personal information by third parties and in
which individuals and businesses increasingly store information “in the
cloud” rather than on their own devices, a traditional privacy paradigm
based on secrecy is no longer relevant or useful. Several Supreme Court
justices have acknowledged this flaw in Katz jurisprudence. 46

8. Katz Stays Home
Katz will be mourned much less than one might expect given the excite-
ment with which its arrival was greeted. At the time, Katz was said to be
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a “revolution” and a “watershed in fourth amendment jurisprudence,”
and consensus quickly emerged that it was a “landmark decision that dra-
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matically changed Fourth Amendment law.” This was, at least in part,
because prior to Katz the boundary between that which was private (in the
Fourth Amendment sense of requiring a warrant to be searched) and that
which was not was largely based on the legal concept that one’s home was
one’s castle, while that which was out in public was fair game for the state.
Katz was held to have redefined this boundary such that, in the words of
the majority opinion of the Court, whatever a person “seeks to preserve as
private, even in an area accessible to the public” is protected by the Fourth
Amendment, whereas that which “a person knowingly exposes to the pub-
lic, even in his own home or office, is not.” Yet the assertion that “the Fourth
Amendment protects people, not places” did not create the expected pri-
vacy bubble that accompanies a person wherever she or he goes. In an
important qualification, Justice Harlan noted from the onset that “what
protection [the Fourth Amendment] affords to those people [. . .] requires
reference to a place.” 50
Most important, as Katz was used as a precedent in case after case
that followed, time and time again the courts recognized a reasonable
expectation of privacy when the intrusions concerned the home—but
not when the person or their communications were in public spaces, in