Mary Leary, an associate professor at the Catholic University law school, has published a draft of her forthcoming law review article, “Katz on a Hot Tin Roof – Saving the Fourth Amendment from Commercial Conditioning by Reviving Voluntariness in Disclosures to Third Parties,” concerning individuals’ privacy rights. Here’s the abstract:
In a world in which Americans are tracked on the Internet, tracked through their cell phones, tracked through the apps they purchase, and monitored by hundreds of traffic cameras, privacy is quickly becoming nothing more than a quaint vestige of the past.
In a previous article discussing the intersection of technology and the Fourth Amendment, I proposed reframing the issue away from conventional commentary. The Missed Opportunity of United States v. Jones: Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World, 15 PENN. J. CON. L. 331, 333 (2012). That article posits that society has reached the point about which Justice Blackmun cautioned – the point at which privacy “expectations [have] been ‘conditioned’ by influences alien to well-recognized Fourth Amendment freedoms.” Society finds itself at this juncture not because of governmental conditioning, as Justice Blackmun warned, but because of a concept the article defined as “commercial conditioning.” That proposal called for a legislative requirement that an individual opt into such information disclosure before such a disclosure could be made.
This article further develops the concept of “commercial conditioning,” and explores not a legislative solution, but possible judicial responses to the growing reality of private commercial entities eroding privacy expectations and thereby expanding governmental power. This article seeks to guide the judiciary in analyzing evidence containing certain private information obtained by the government from these commercial entities. Such evidence should be afforded some of the procedural protections of the Fourth Amendment when the government accesses it – a protection not currently available to this private information. Read more »