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SherwinNamFirstPaper 3 - 11 Mar 2020 - Main.SherwinNam
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| | | The Katz standard also flies dangerously close to circularity. A judge finding Katz reasonableness effectively reasons that "because society would accept this expectation of privacy as reasonable, the defendant's expectation is reasonable." While a number of factors would support the notion that society would accept a certain expectation of privacy as reasonable, the courts' willingness to extend Fourth Amendment protection (or not) would itself motivate the very expectations the courts purport to "find" in a Katz analysis. | |
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< | Consider Carpenter, for example. There, the Court found that the defendant's expectation of privacy in his cell site location data was a reasonable one. However, before Carpenter, it was anything but clear that society would accept this expectation as reasonable. Cell phones were known as able to track user location data as early as 2004, seven years prior to the facts giving rise to Carpenter. Further, mainstream media outlets like Wired reported that the federal government was exploiting cell phones' location-tracking features—or bugs, as some might call them—in 2009, two years before Carpenter committed robberies while keeping a location-tracking device in his pocket. Despite a swell of social consciousness surrounding the surveillance capabilities of cell phones, the Court found that society would accept this expectation of privacy as reasonable. Now, despite living in a post-Snowden society where citizens consciously—and without excuse—acquiesce to third-party technology giants and government actors tracking their every move, society can now reasonably expect to keep this information from law enforcement. The Court appeared to get society's expectations wrong in Carpenter, but now, society can nonetheless reclaim that expectation of privacy, a seemingly backwards result. | >
> | Consider Carpenter, for example. There, the Court found that the defendant's expectation of privacy in his cell site location data was a reasonable one. However, before Carpenter, it was anything but clear that society would accept this expectation as reasonable. Cell phones were known as able to track user location data as early as 2004, seven years prior to the facts giving rise to Carpenter. Further, mainstream media outlets like Wired reported that the federal government was exploiting cell phones' location-tracking features—or bugs, as some might call them—in 2009, two years before Carpenter committed robberies while keeping a location-tracking device in his pocket. Despite a swell of social consciousness surrounding the surveillance capabilities of cell phones, the Court found that society would accept this expectation of privacy as reasonable. Now, despite living in a post-Snowden society where citizens consciously—and without excuse—acquiesce to third-party technology giants and government actors tracking their every move, society can now reasonably expect to keep this information from law enforcement. The Court appeared to get society's expectations wrong in Carpenter, but now, society can nonetheless reclaim that expectation of privacy, a seemingly backwards result. | | | Reverting to a Property-based Rule |
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