The Berkeley Technology Law Journal recently published an article on the Fourth Amendment and the Quon case, entitled Ontario v. Quon: In Search of a Reasonable Fourth Amendment, by Miles K. Palley. The article examines the work of Professors Kerr and Solove on the Fourth Amendment, but it also discusses my Privacy 3.0 article. Professors Kerr and Solove offer concrete changes to Fourth Amendment jurisprudence that are discussed by the author, and the article then examines my suggestions for the private sector in the context of the Fourth Amendment analysis. Palley states:
Serwin’s discussion is directed at privacy protection in the private sector, but his insights into the past and future of privacy’s place in our legal and social institutions provides a helpful perspective. Further, although Serwin does not discuss the Fourth Amendment directly, many Fourth Amendment scholars share Serwin’s concern that information privacy is often lost in the judicial shuffle of one’s reasonable expectation of privacy. For example, as noted in Section III.B.1, supra, Solove believes that people’s desire for protection from government information gathering—not privacy expectations—should inform the application of the Fourth Amendment.
Although he does not use Serwin’s vocabulary, the answer Solove identifies is very similar to the principle of proportionality. Serwin’s discussion of privacy as proportionality goes directly to the heart of what sort of privacy protection “society is [or should be] prepared to recognize as reasonable.” The privacy interest protected by the Fourth Amendment—recognized in Katz and puzzled over ever since—could incorporate Serwin’s discussion of proportionality. That is, the sensitivity of the type of information being gathered, shared, or considered for protection should play a more prominent role in assessing the reasonableness of a search under the Fourth Amendment.
While I have not applied Privacy 3.0 in the Fourth Amendment context, there are aspects of it that could inform Courts’ analysis of these issues. As the Lares Institute conducts additional research into data sensitivity, we will explore whether Privacy 3.0 can be applied in this way.