Is the Fourth Amendment Dead on the Net? Is Expectation of Privacy “Reasonable”?

The Fourth Amendment only protects you against searches that violate your reasonable expectation of privacy. A reasonable expectation of privacy exists if 1) you actually expect privacy, and 2) your expectation is one that society as a whole would think is legitimate.

So says the Electronic Frontier Foundation (EFF) on the Web page on its site discussing the Surveillance Self-Defense Project. That’s an accurate summary of the law as it’s been interpreted over the years by the courts in the United States. Famously, e.g., courts have ruled that prison inmates have no reasonable expectation of privacy; they should assume they are under constant surveillance.

So the question that arises for me is whether anyone in the world today has a “reasonable” expectation of privacy in Internet communications. And I sadly conclude that, as much as we might like to claim it and as hard as we’d fight for it if it weren’t too late, it is in fact too late. This means that any communication you have that involves the Internet, however seemingly tangentially, should be governed by the principle that if you don’t want everyone to know about it and see it, don’t do it on the Net.

I am expecting that conservative courts — and this regrettably includes a highly partisan Supreme Court — will soon begin chipping away at the expectation of privacy that many us pretend we have as they conclude that such expectation does not meet the reasonable clause of the freedom as understood by those courts.

And then all hell will break loose.


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