Changing conceptions of technology

A key ruling on issues of privacy is the Katz decision, stating that the 4th amendment protects people, not physical places. While this is an easy standard to follow, what's more complicated to apply to the online age is the stipulations about the reasonable expectation one can have about privacy.

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. "

In the modern age, what does a person who uses a phone, laptop, and GPS "knowingly expose"? The ramifications, of course, are significant, for anything that is knowingly exposed loses a degree of protection. In the analog world, it was fairly obvious to anyone doing anything whether their act was public or private. If people could see you or hear you, it was not private. In the digital world, however, things become more complicated.

For example, an 80-year old woman who uses various technologies may have no idea of what digital traces she is leaving behind, or how public her online activity may be. A savvy 20 year old, on the other hand, might have a much more accurate understanding of what others, including the government, can easily figure out about his activity. Is it reasonable to say that since the 20 year old might have "knowingly expose[d]" more information, the government could use such information against him, while it could not bring that evidence against the 80 year old since she was unaware of it? Furthermore, how can you ever prove whether someone knew how public or private their activity was?

With technology the way it is now, this standard seems more useless than ever. The way technology is constantly changing and Google is constantly changing how it tracks almost every aspect of your life, how can someone be expected to know just how public or private his actions are? Would it make more sense for the government to establish a more concrete, objective standard for determining what is public and what is private?

As the situation currently stands, the government keeps having to play catch-up with new technologies, ruling whether each new technology which is used to collect information about people is acceptable or not, and under what circumstances. Perhaps getting rid of the issue of the privacy one expects and inserting standards of the privacy the government expects you to have could help clarify matters. The GPS example strikes me as an area where this would be especially useful, since the current laws provide little guidance about how to view a GPS device placed on someone's car by the police. It is clearly somewhere between a phone tap and a police car tracking the person physically, yet the decision to make the GPS tracker illegal left me unconvinced, since the truth is that there are no real laws on the issue, and the court simply decided that a police car could never track a car as well as a GPS could.
The question, of course, would then be what exactly these new guidelines for defining privacy for the 21st century would be. To that, honestly, I have no good answer, except to say that a person or society's expectations - which are subjective and ever-changing - should not be a factor.