Under current Fourth Amendment doctrine, parties to a communication enjoy constitutional protection against government surveillance only when they have a reasonable expectation of privacy in those communications. This paper discusses the insufficiency of the reasonable expectation of privacy test in the context of modern communications. Significantly, courts have required that communications media be virtually invulnerable before affording them Fourth Amendment protection.
That approach not only misses the point of the Katz case, which established the reasonable expectations of privacy test, but also dramatically under protects privacy, with pernicious results. This paper articulates a first principles approach to constitutional protection that focuses on the reasons electronic surveillance requires significant judicial oversight. In particular, it argues that electronic surveillance that is intrusive, continuous, indiscriminate, and hidden should be subject to the heightened procedural requirements imposed on government wiretappers. Because much of modern online surveillance shares those characteristics, it should be subject to the highest level of constitutional regulation.
Audio from Susan Freiwald’s presentation of her paper at the 2007 STLR Symposiusm can be accessed here.