Everybody’s wrong. That’s sort of the message I was putting out when I wrote my 2008 American University Law Review article entitled “Reforming Fourth Amendment Privacy Doctrine.”
A lot of people have poured a lot of effort into the “reasonable expectation of privacy” formulation Justice Harlan wrote about in his concurrence to the 1967 decision in U.S. v. Katz. But the Fourth Amendment isn’t about people’s expectations or the reasonableness of their expectations. It’s about whether, as a factual matter, they have concealed information from others—and whether the government is being reasonable in trying to discover that information.
The upshot of the “reasonable expectation of privacy” formulation is that the government can argue—straight-faced—that Americans don’t have a Fourth Amendment interest in their locations throughout the day and night because data revealing it is produced by their mobile phones’ interactions with telecommunications providers, and the telecom companies have that data.
I sat down with podcaster extraordinaire Caleb Brown the other day to talk about all this. He titled our conversation provocatively: “Should the Government Own Your GPS Location?”