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INTRODUCTION
Most Americans now live in a world where nearly every call or click online leaves a digital trail that can be stored, searched, and stitched together to reveal an intimate portrait of private life. But current law affords little privacy protection to information about these activities, undermining First and Fourth Amendment safeguards that are essential to individual freedoms and a robust democracy. The so-called third-party doctrine1 has created a privacy gap by denying Fourth Amendment protection to expressive and associational data processed by third parties, including communications information and data stored in the "cloud." Exacerbated by rapid advances in information technology and a proliferation of third-party records, the gulf continues to widen.
Congress has not stepped in to fill the void. The laws that govern online privacy are older than the World Wide Web.2 It is a frequent and wholly justified criticism of the American legal system that a great number of the people in charge of making the rules for modern information technology have little or no experience using email, sending a text, or reading a blog.3 And federal courts have been reluctant to delve into the business of regulating electronic surveillance,4 with the exception of two recent Supreme Court decisions that hint at a new way forward.5
The Executive Branch, for its part, has taken advantage of the legal turmoil.6 As we now know, in the aftermath of 9/11, the National Security Agency began collecting phone records and online metadata in bulk,7 relying in large part on Smith v. Maryland - a 1979 Supreme Court case that involved one crime and one suspect's phone records.8 And while there is a bipartisan push in Congress to update the decades-old law that gives electronic communications a patchwork of inconsistent and illogical protections, it remains to be seen whether the reform package will become law.
There is a strong temptation to blame the current privacy gap on a divide between so-called digital natives and digital immigrants - those who grew up using computers and the Internet, and those who did not.9 Of course, it is the older generation, the digital immigrants, who make the rules (at least for the moment). Perhaps a new crop of tech-savvy judges and politicians will set things straight? This...