The Katz reasonable expectation of privacy doctrine has lasting relevance in the digital age, but that relevance must be carefully and clearly guided in great detail by Congressional and state legislative enactments continually resetting the privacy bar as technology advances. In that way, the Katz “reasonableness” requirements are actually set by the legislative branch, thereby precluding courts from applying inapposite analogies to phone booths, cigarette packs, and business records. Once legislation provides the new contours of digital privacy, those legislative contours become the new “reasonable.”
This article calls upon Congress, and to a lesser extent, state legislatures, to control that which seems, at times, untamable: technology in the digital age. But it can be done, and the ECPA and SCA, although in need of improvements, are great steps in the right direction. A cellphone is not a cigarette pack, historical cell site data are not just business records, and courts need not enforce adhesion waivers. Courts and the Katz reasonable expectation of privacy doctrine are rudderless in the absence of legislative efforts to continually reset the privacy bar in the digital age.
- Fourth Amendment,
Available at: http://works.bepress.com/charles_maclean/19/