It’s axiomatic that what constituted an “unreasonable search” in 1789 is difficult to translate to 2013. And the US Supreme Court’s “reasonable expectation of privacy” rubric doesn’t help much because ”reasonable expectations” naturally evolve with the technology landscape. But the implications of this anachronistic approach are staggering and little is being done to address the problem. What is at stake is one of the most cherished protections enshrined in the Bill of Rights, a document that literally was required in order to adopt our Constitution. From the beginning, Americans have expected to be free from “unreasonable searches” by the government as a fundamental part of their package of individual rights. And we are losing that protection as technology advances faster than our legal system can react.
The legal system simply isn’t capable of keeping up with the pace of technological erosion of privacy. The only way these issues can be resolved jurisprudentially is via the following process:
1) A new technology is invented and police quickly adopt it for use in a criminal investigation;
2) A suspect is convicted at trial and preserves their objection to use of the technology;
3) The long series of appellate courts refuse to grant the defendant relief;
4) The matter makes it way to the United States Supreme Court by petition for a writ of Certiorari (“Cert”).
5) Four members of the Court agree that it’s an issue worth hearing and they grant Cert.
6) The Court hears arguments and issues a ruling.
This process can take decades. Meanwhile, of course, police continue to use the technology to the point where the very definition of “reasonable expectation of privacy” changes to reflect that people no longer expect privacy where they once did. The result: an ongoing, uni-directional erosion of privacy with no end in sight.
The following article published by Eleanor Birrell at Harvard suggests some solutions with teeth. Don’t hold your breath.