Tuesday, June 5, 2012

The Fourth Amendment in a World Without Privacy

Ohm, Paul, The Fourth Amendment in a World Without Privacy (March 20, 2012). Mississippi Law Journal, Vol. 81, No. 5, p. 1309, 2012.

From the abstract: "This Article explores the relationship between private and public surveillance. Every year, companies spend millions of dollars developing new services that track, store, and share the words, movements, and even the thoughts of their customers. Millions now own sophisticated tracking devices (smart phones) studded with sensors and always connected to the Internet. They have been coaxed to use these devices to access fun and valuable services to share more information, more of the time. Our country is rapidly becoming a surveillance society….  

If we believe that the Fourth Amendment can and should survive the coming reach of private surveillance, it is not enough to prescribe mild tweaks to the third-party doctrine. A more thorough reinvention of the Fourth Amendment is in order. We should rebuild the Fourth Amendment atop a foundation of something other than privacy, and this Article extends the work of other scholars who have convincingly suggested that the Fourth Amendment was originally intended and is better interpreted to ensure not privacy but liberty from undue government power." Read more