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I just posted my new forthcoming essay on SSRN called Fourth Amendment Pragmatism, 51 Boston College Law Review __ (forthcoming 2010).   Here’s the abstract:

In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) The Coverage Question – Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question – How should the Fourth Amendment regulate this form of government information gathering? The Coverage Question should be easy to answer: The Fourth Amendment should regulate whenever government information gathering creates problems of reasonable significance. Such a scope of coverage would be broad, and the attention wasted on the Coverage Question would be shifted to the Procedure Question. This pragmatic approach to the Fourth Amendment is consistent with its text and will make Fourth Amendment law coherent and comprehensive.

Here’s a brief excerpt from the introduction:

For a long time, I believed that with the appropriate understanding of privacy—one that is well-adapted to modern technology, nimble and nuanced, forward-looking and sophisticated—Fourth Amendment jurisprudence could be rehabilitated. I now realize I was wrong.

The entire debate over reasonable expectations of privacy is futile, for it is not focused on the right question. The debate is reminiscent of the philosophical dispute over a squirrel that William James relates in his book, Pragmatism:

The corpus of the dispute was a squirrel—a live squirrel supposed to be clinging to one side of a tree-trunk; while over against the tree’s opposite side a human being was imagined to stand. This human witness tries to get sight of the squirrel by moving rapidly round the tree, but no matter how fast he goes, the squirrel moves as fast in the opposite direction, and always keeps the tree between himself and the man, so that never a glimpse of him is caught. The resultant metaphysical problem now is this: Does the man go round the squirrel or not? He goes round the tree, sure enough, and the squirrel is on the tree; but does he go round the squirrel?

James told the others that the debate was in vain—it all boiled down to what “going round” the squirrel meant. If “going round” meant passing the squirrel in all four directions, then the man went around the squirrel. But if going around meant being on all four sides of the squirrel, then “the man fails to go round him, for by the compensating movements the squirrel makes, he keeps his belly turned towards the man all the time, and his back turned away.” We should avoid getting bogged down in such fruitless debates, James explains, as it is more productive to focus on “practical consequences.”

Just as the scholars futilely debated whether the man went around the squirrel, we, too, have often been focusing on the wrong question when considering Fourth Amendment protection—whether there is an invasion of privacy. Fourth Amendment coverage often bears little relation to the problems caused by government investigative activities. It bears little relation to whether it is best to have judicial oversight of law enforcement activity, what that oversight should consist of, how much limitation we want to impose on various government information gathering activities, and how we should guard against abuses of power.

In this essay, I argue for a more pragmatic approach to the Fourth Amendment. There are two central questions in Fourth Amendment analysis:

(1) Does the Fourth Amendment provide protection against a particular form of government information gathering?

(2) How should the Fourth Amendment regulate this form of government information gathering?

I will refer to Question 1 as “the Coverage Question” and Question 2 as “the Procedure Question.”

The Coverage Question has preoccupied Fourth Amendment law and has led to a complicated morass of doctrines and theories. We should sidestep the contentious debate about expectations of privacy—or about any other specific value as a trigger for Fourth Amendment protection. Instead, whenever a particular government information gathering activity creates problems of reasonable significance, the Fourth Amendment should require regulation and over-sight. These problems not only involve invasion of privacy, but also chilling of free speech, free association, freedom of belief, and consumption of ideas. They can involve inadequately-constrained government power, lack of accountability of law enforcement officials, and excessive police discretion, among other things. The Fourth Amendment should provide coverage whenever any of these problems might occur.

Such an approach would result in Fourth Amendment coverage that is comprehensive rather than haphazard. It would be consistent with the Fourth Amendment’s language, which speaks broadly in terms of “unreasonable searches.” The Coverage Question thus should be easy—the Fourth Amendment should provide protection whenever a problem of reasonable significance can be identified with a particular form of government information gathering.

Read the full essay here.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

If you are interested in privacy and data security issues, there are many great ways Professor Solove can help you stay informed:
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