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July 01, 2014

Reply Brief: The Circularity of the Fourth Amendment

Hon. James Robertson

Congratulations on your brilliant Spring 2014 issue, with its timely focus on privacy. Judge Jeremy Fogel’s thoughtful and scholarly essay “A Reasonable Expectation of Privacy” and Brian Pascal’s scary piece “How Technology Broke Privacy,” in particular, ought to be required reading. Taken together, they demonstrate why the Constitution is an unreliable guardian of privacy in the digital age and why, indeed, its protection is likely to grow weaker and weaker as surveillance technology grows more and more effective.

The problem we should be worried about is not what government might do or could do with surveillance. It is, rather, what we are doing to ourselves, as we ride complacently along in the flood of Big Data (what is the current to a fish?), marvel at the Internet of Things, and bare intimate details of our lives on Facebook—aiding and abetting the reduction of society’s expectation of privacy to the point where it can be and has been said, without irony, that privacy is dead.

In her concurring opinion in the GPS tracking case United States v. Jones, Justice Sotomayor channels the concerns of what critics have called the “circularity” of the Fourth Amendment “reasonable expectation of privacy” test, worrying that advances in surveillance techniques will “shape the evolution of societal privacy expectations.” We are being made more and more aware of the “mosaic” image of ourselves that Google, Target, and others in the private sector can assemble by mining and analyzing the data that we voluntarily create every time we swipe a credit card, access the Internet, or drive through a toll booth. Perhaps it is time, Justice Sotomayor suggests, to re-think the Court’s Fourth Amendment jurisprudence—to “reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

But that seems unlikely to happen anytime soon. Justice Alito, also concurring in Jones, offered the reasonable expectation of privacy as an alternative rationale for the Court’s decision, but could not “identify with precision the point at which the tracking of [the Jeep the defendant was driving] became a search.” “Relatively short-term monitoring” would not violate anyone’s privacy, he wrote, but “longer term GPS monitoring” would. Justice Scalia, writing for the Court, made short work of such indeterminacy, perhaps recalling the Court’s difficulty in recovering from its “I know it when I see it” reasoning in obscenity cases.

The more transparent our society becomes, the lower our expectation of privacy. The lower our expectation of privacy, the less we are protected by the Fourth Amendment.

Hon. James Robertson

The author is a retired U.S. District Judge.