RIghts are Reasonable... Right?

One of the challenges of the Digital Age is defining whether there is a reasonable expectation of privacy when online. Orin Kerr’s article in the GW Law Review points out that information sent to ISPs are held on ISP servers, so some courts have held that users have relinquished their Fourth Amendment rights to that information. These cases deal with two possible solutions: (1) using ISPs removes any protection guaranteed by the Fourth Amendment, or (2) the role of digital communication in our society necessitates the same protection afforded tradition forms of communication. I argue that the latter is more palatable to the sensibilities of citizens in the Digital Age.

In ruling in Katz, the Court noted to role that public telephones have such a vital role in society that a reasonable expectation of privacy must be granted for the sake of expedience and convenience of modern living. As such, Katz’s constitutional rights had been violated when he was wiretapped. The same reasoning was applied in regards to private telephones, so both public and private telephones are protected from unreasonable encroachments upon reasonable expectations of privacy. The case led to a two-ponged test for establishing reasonableness, the Katz test: (1) the individual "has exhibited an actual (subjective) expectation of privacy," and (2) society is prepared to recognize that this expectation is (objectively) reasonable.

I argue that this test reveals that people feel there is a reasonable expectation of privacy online. One would not use the postal service if one thought that his letter’s contents could be read by anyone. One would be reticent to use a phone if his calls could be monitored by anyone. The Court in Katz recognized that there would be tremendous disservice to efficient communication if people did not feel that their calls could not be tapped unless there was incriminating evidence. Similarly, in the digital age, it is virtually impossible to function without digital age technology. We have become so dependent on digital communication that we have come to expect the same privacy rights that are afforded us through the mail and over the telephone. Thus, according to Katz test, we do have a reasonable expectation to privacy.

The question remains, does a consensus’ expectation of a right actually entail that people should be granted the freedom it affords? (Granted, this notion is probably the source of all rights, but that’s simply the legal positivist in me talking. Natural lawyers would probably argue this point.)