Adventures on the Back of the Envelope: Katz v. United States and the Popularization of the Phrase “Reasonable Expectation of Privacy”

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2 Responses

  1. Orin Kerr says:

    I’ve looked into this, too. For the decade after Katz was decided, Harlan’s test was mentioned on occasion but not expressly adopted by the Supreme Court as the test for what was a search. As far I can tel tell, the first case that clearly and unambiguously accepts Harlan’s framework as the search test is Smith v. Maryland in 1979.

    Also, it’s worth checking for “legitimate expectation of privacy” as well as “reasonable expectation of privacy,” as the former formulation has been used a lot, too, and was more common earlier on.

  2. I wonder if Scalia’s opinion in Jones, which provided an alternate to the “reasonable expectation of privacy” test, will result in a further decline in usage.