In the courts, judges want guidance from legislatures, but let's face it; the majority of Congress couldn't fill a thimble with their combined technical prowess. Yet these individuals are working on legislation that eventually determines what can and cannot be done...what is or is not the public's reasonable expectation of privacy.
Sylvain argues that "the reasonable expectation standard is particularly flawed if it has the effect of encouraging judges to seek guidance from legislatures on constitutional norms and principles. Judicial review is the vital antimajoritarian check against excessive government intrusions on individual liberty under our constitutional scheme. This is a responsibility that courts cannot pass off to the political branches when, as is the case today, most people expect that the cost of network connection is total surveillance."
He adds that "court-administered privacy law doctrine must change if the protection against 'unreasonable searches and seizures' is to have any positive legal meaning. The current court-created doctrine will not be able to keep up if it compels judges to measure public expectation. It is time for courts to reassert their positive duty to say what privacy law is."
The reasonable expectation standard and the third-party doctrine have outlived their time and usefulness. Reform is especially urgent today, in the era of total surveillance, when data brokers and governments can aggregate and trade transactional subscriber data about electronic communications so easily. Expectations are difficult to define when everyone, it seems, shares their personal information with service providers and application developers in order to be connected.
Courts should "bring a needed dose of reality to Fourth Amendment analysis by excising any broad assumptions about the nature of user consent in the third-party doctrine. This reform would recognize that users do not generally choose to compromise their data about their phone use (or web browsing or e-mailing) just because they disclose information for the limited purpose of obtaining telecommunications service. Participation in the networked information economy is practically a necessity today."
He adds, "Total surveillance seems to be a highly disproportionate toll to pay for inclusion, no matter what users' expectations are."
I highly recommend for you to read Sylvain's much more in-depth and eloquent explanation spread out over 39 pages. Here is where you can download the essay, "Failing Expectations: Fourth Amendment Doctrine in the Era of Total Surveillance."
Sign up for CIO Asia eNewsletters.