Stanford Law Review Online: The Dead Past

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4 Responses

  1. S Halayka says:

    Brilliant article, and I do agree. Now, if we could get actual enforcement of laws that forbid people — who clearly have no empirical backing — from including hearsay and false statements in affidavits, we may have a consistent reality.

    Unfortunately, until the professionals step up, I highly doubt that the remainder will follow.

  2. Orin Kerr says:

    Kozinski’s Keynote seems to be based on a questionable premise: That the fact that some people voluntarily give up their privacy somehow lessens or eliminates Fourth Amendment rights of everyone else. As far as I can tell, Kozinski gets this from he assumption that it is inherent in the reasonable expectation of privacy test from Katz. Specifically, he seems to be assuming from the words of the test that it must be based on societal practices, and therefore reflects societal practices.

    But my sense is that if you really get into the cases interpreting the Katz test, it turns out that this is generally not true. The Court’s cases on the reasonable expectation of privacy test sometimes do reflect social realities, to be sure. But more often, they tend to reflect more lasting principles and distinctions like inside surveillance versus outside surveillance, or the need to protect homes and cars and packages and persons. Those latter principles seem to be much less sensitive to the kinds of changing social practices Kozinski is worried about. To the extent that’s right, that seems to undercut Kozinski’s concerns.

  3. Eric Adler says:

    But our “legitimate expectations” shouldn’t be skewed by sampling bias:

    its much easier to count people publicly yakking on cell phones than to count private conversations. And for every bawdy blogger, there may be a thousand politely private affairs.

  4. Brian B says:

    The opinion ignores the fact that our Constitutional Republic was established to protect the rights of individuals. If person A chooses to broadcast their life details person B is not obligated to sacrifice their privacy.

    Further, anonymity is a form of privacy. Speaking in public when you have a reasonable expectation of not being personally identified by those within earshot is not a waiver of privacy.

    Finally using the logic employed and applying it to national security we could conclude as follows:

    a. the US government has failed to secure it’s territorial borders thereby exposing citizens to foreign belligerence.

    b. the US government has allowed foreign governments to hack into defense department information systems and steal design schematics for advanced weapons systems thereby undermining our militarys ability to deter aggression

    c. the US government has ceded its dominion of national security and has no authority to prosecute Bradley Manning as a national security threat.