Great privacy essay: Fourth Amendment doctrine in the era of total surveillance (NetworkWorld, 30 July 2014) – When you signed up with your ISP, or with a wireless carrier for mobile devices, if you gave it any thought at all when you signed your name on the contract, you likely didn’t expect your activities to be a secret, or to be anonymous, but how about at least some degree of private? Is that reasonable? No, as the law currently suggests that as a subscriber, you “volunteer” your personal information to be shared with third-parties. Perhaps not the content of your communications, but the transactional information that tells things like times, places, phone numbers, or addresses; transactional data that paints a very clear picture of your life and for which no warrant is required. I’d like to direct your attention to an essay titled “Failing Expectations: Fourth Amendment Doctrine in the Era of Total Surveillance” by Olivier Sylvain , Associate Professor of Law at Fordham University School of Law. He said, “Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials.” * * * Sylvain argues that “the reasonable expectation standard is particularly flawed if it has the effect of encouraging judges to seek guidance from legislatures on constitutional norms and principles. Judicial review is the vital antimajoritarian check against excessive government intrusions on individual liberty under our constitutional scheme. This is a responsibility that courts cannot pass off to the political branches when, as is the case today, most people expect that the cost of network connection is total surveillance.”
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