U.C. Davis Law Review
Aya Gruber, Garbage Pails and Puppy Dog Tails: Is that What Katz Is Made of?, 41 U.C. Davis L. Rev. 781 (2008), available at http://scholar.law.colorado.edu/articles/283.
This Article takes the opportunity of the fortieth anniversary of Katz v. U.S. to assess whether the revolutionary case's potential to provide broad and flexible privacy protection to individuals has been realized. Answering this question in a circumspect way, the Article pinpoints the language in Katz that was its eventual undoing and demonstrates how the Katz test has been plagued by two principle problems that have often rendered it more harmful to than protective of privacy. The manipulation problem describes the tendency of conservative courts to define reasonable expectations of privacy as lower than the expectations society actually entertains. The normativity problem captures the idea that the Katz test allows reasonable expectations to be set by those who engage in normatively disfavored privacy defeating conduct. The Article then concentrates on two specific doctrines exemplary of these problems, the third party doctrine and the contraband exception, and discusses their ruinous effects on privacy in a technological era. The third party doctrine, which roughly holds that third party exposure defeats privacy interests, has severely hampered the ability of the Katz test to afford Fourth Amendment protection to intimate online communications. Likewise, the contraband exception, which holds that there is no legitimate expectation of privacy in illegal items, proves exceedingly dangerous to privacy as crime detection technology becomes increasingly refined. In the end, however, this Article does not advocate trashing the Katz test, but rather suggests methods of interpretation that remedy the manipulation and normativity problems.
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