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Fear of invisible eyes and ears is no longer the exclusive province of Orwellian nightmares. From the allseeing eye on the back of the $1 bill to George Orwell's Nineteen Eighty-Four, and from Rockwell's 1984 paranoid pop classic "Somebody's Watching Me" to films like Enemy of the State and the television series Person of Interest, allusions to surveillance of our lives are abundant.
Surveillance is pervasive and entrenched in our everyday lives. We have pole cameras on intersections capturing our license plates and permitting law enforcement to track our movements through public roads. There are cameras with enhanced face recognition software that allow law enforcement to identify a suspect by searching databases of stored facial photos. Drones are being deployed for domestic surveillance. And through social networking sites, such as Facebook, YouTube, and Twitter, law enforcement can check the status of any user and gather evidence of potential crimes. Clearly, surveillance and data collection have changed forever-along with the nature of threats to privacy. To be sure, these digital technologies enable law enforcement to investigate crimes and find those responsible faster. But this efficiency comes at a cost: a diminished sense of privacy. Can analog-era Fourth Amendment law evolve to protect our privacy in the digital age?
The Fourth Amendment prohibits unreasonable searches and seizures by the government. What is an unreasonable search and seizure? The Supreme Court has debated this question for years and developed different standards to analyze Fourth Amendment challenges. With today's explosion of surveillance technologies, the "reasonable expectations of privacy" framework-50 years since its creation in Katz v United States-remains an uncertain protector of privacy. The Supreme Court's Katz formulation ushered in a conflated rule linking privacy to secrecy. Under the so-called "third-party doctrine," any information disclosed to a third party becomes public and is no longer protected by the Fourth Amendment. The Supreme Court should reconsider its approach to the sharing of personal information with third parties and strike a proper balance between a person's Fourth Amendment right to privacy and law enforcement's use of pervasive surveillance technologies.
NEW FORMS OF SURVEILLANCE
The protection guaranteed by the Fourth Amendment to our "persons, houses, papers, and effects" has greatly diminished. Partly, we have technology to thank for our current predicament. We...