Katz Is Dead. Long Live Katz

Abstract

Katz v. United States is king of Supreme Court surveillance cases.' Written in 1967, it struck down earlier regime of property rules, declaring that the Fourth Amendment protects people, not places.2 The concurrence by Justice Harlan announced new regime court-issued warrants are required where there is an infringement on a person's reasonable expectation of privacy.3 Together with companion case Berger v. New York,4 Katz has stood for a grand conception of Fourth Amendment as a bulwark against wiretaps and other emerging forms of surveillance. Professor Orin Kerr, in his excellent article, shows that this view of Katz fits badly with how courts now apply Fourth Amendment to electronic surveillance and other new technology.' Upon reading his own obituary, Mark Twain famously observed that reports of my death are greatly exaggerated.6 This Essay shows that demise of Katz has actually been understated. Professor Kerr has correctly shown how property regime has persisted where it helped government, such as cases that hold that many kinds of surveillance are not searches under Fourth Amendment. This Essay adds insight that property regime has actually been abandoned in many other respects since 1967, in ways that have dramatically aided