Two More Ways Not to Think about Privacy and the Fourth Amendment

This Essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements on privacy in the information age are best developed outside the courts and outside constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: a focus on the text of the Fourth Amendment; the study of its history; or an effort to preserve the amount of privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.

PDF