Reasonable Expectation Of Privacy Research Articles

Aerial Trespass and the Fourth Amendment

Since 1973, courts have analyzed aerial surveillance under the Fourth Amendment by applying the test from Katz v. United States, which states that a search triggers the Fourth Amendment when a government actor violates a person’s “reasonable expectation of privacy.” The Supreme Court applied Katz to aerial surveillance three times throughout the 1980s, yet this area of the law remains unsettled and outcomes are unpredictable. In 2012, the Supreme Court recognized an alternative to the Katz test in Jones v. United States, which held that a search triggers the Fourth Amendment when a government actor physically intrudes into a constitutionally protected space with the intent to obtain information. Courts have largely avoided applying the Jones intrusion test to aerial surveillance. This Note explores the intersection of the Fourth Amendment, aerial property rights, and government use of drones. It argues that the Jones intrusion test can be a useful doctrinal tool for analyzing aerial surveillance under the Fourth Amendment. This issue will only grow in importance as law enforcement expands its use of use of drone technology.

Privacy, defamation and ZXC v Bloomberg

ABSTRACT The significance of the Supreme Court decision in ZXC v Bloomberg extends well beyond recognition of the ‘starting point’ that, up to the point of charge, a person who is subject to police investigation has a reasonable expectation of privacy in respect of information about it. The Supreme Court's willingness to use the privacy tort to protect a claimant's reputational interests (based largely on European Court of Human Rights jurisprudence) moves the misuse of private information action firmly into defamation’s domain. This article examines the potential ramifications of the change in relationship between the two actions and shows how measures like the new exception for foreseeable loss of reputation (recognised in ZXC itself) can help preserve essential protections for true, but reputationally-damaging, allegations.

Compartmentalised data protection in South Africa: The right to privacy in the Protection of Personal Information Act

In European Union (‘EU’) law, the entrenched right to data protection is an independent fundamental right. EU case law has gradually disconnected the right to data protection from the right to a private life. South Africa’s first exclusive data protection legislation, the Protection of Personal Information Act 4 of 2013 (‘POPIA’), is redolent of EU data protection legislation. However, the stated purpose of the POPIA is to give effect to the right to privacy. This article examines whether the laws of data protection can be wholly encapsulated within s 14 of the Constitution. To this end, this article considers two main conceptions of privacy in our law. The first is Neethling’s informational privacy and the reasonable expectation of privacy. The second is Rautenbach’s theory of informational control over personal matters in relation to other rights. On either approach, I argue that the substantive provisions of the POPIA are irreducible to privacy protection alone. Ultimately, framing the POPIA exclusively within the domain of privacy will either (i) unduly restrict legislative interpretation; or (ii) the true meaning of privacy will be diluted, leading to legal uncertainty. To avoid this, I suggest distinguishing between the value of privacy in the POPIA and the actual loss of privacy.

Leaning Into Digital Dilemmas: How Educators’ Perspectives Can Inform New Civics Education

Background/Context:Digital life raises dilemmas that elude straightforward courses of action. These dilemmas are consequential to civic life, where participatory practices intersect with digital affordances to lend new power, stakes, and public consequences (Kahne et al., 2015). It is essential that students be able to recognize digital dilemmas and grapple with them in nuanced ways before acting (James, 2014). These realities engender calls for redesigning civic education for the digital age (Kahne et al., 2016). Engaging students with complex, authentic dilemmas builds on a rich tradition in moral education (Kohlberg, 1975). For educators on the front lines of this work, reflecting on polarizing digital civic dilemmas is an important precursor to effective classroom facilitation (Hess, 2005).Purpose and Research Questions:Doxing is the use of public social media to reveal personal information about an individual, often with the intent of inviting public shaming for their speech or other actions (Douglas, 2016). Doxing is a signature dilemma of today’s age that surfaces fundamental questions about freedom, privacy, and accountability. The current study examines educators’ varied responses to a doxing dilemma to illustrate how digital civic dilemmas can raise substantive themes for New Civics education. We ask: How do educators respond to a doxing dilemma? What considerations do they raise to justify different stances?Research Design:We draw on data from a larger survey about digital citizenship to examine views of educators (N = 769) who live and work with adolescents in varied contexts throughout the United States and in more than two dozen international contexts. We report on educators’ responses to the doxing dilemma based on an inductive analysis of their open-ended responses.Findings:The focal dilemma is indeed polarizing: 47% (n = 361) of educators surveyed agreed with the doxing case, while 53% (n = 408) disagreed. Respondents’ justifications reveal how the dilemma evokes reflection on the intersections of digital life with reasonable expectations of privacy, the bounds of constitutional rights and legal protections, salient moral principles, the importance of accountability and consequences for actions, and more.Conclusions/Recommendations:As educators are tasked with preparing youth for a New Civics era, we argue that digital civic dilemmas merit use in educator professional development settings and, ultimately, with students. Educators’ perspectives on the doxing dilemma surface diverse considerations, which we reframe as ten questions to guide and deepen engagement.

Measuring the Acceptability of Facial Recognition-Enabled Work Surveillance Cameras in the Public and Private Sector

Electronic performance monitoring is expanding rapidly in public and private sector environments amidst evidence that when privacy concerns are raised by employees in arbitration and judicial proceedings, there is limited empirical foundation for what constitutes a reasonable expectation of privacy among everyday citizens. This study replicates and expands on Rainie and Duggan’s U.S. study of the acceptability of facial recognition-enabled camera surveillance in the workplace with three separate Canadian survey sample populations. We find that private sector workers tolerate cameras in the workplace more than public sector workers and that the younger age cohort, for both private and public sector workers, is more likely to tolerate cameras in the workplace than the older cohort. Further, through analysis of qualitative comments among those ambivalent about camera surveillance at work, we find that concerns over transparency, safety and authoritarianism were the most frequent themes. These results point to the considerations employers must face for surveillance practices to be viewed as reasonable by employees in both public and private sectors.

Adopting a Legislative Approach for Data in the Fourth Amendment: Defining Personal Data as An 'Effect'

This Article addresses the need to recognize a property-based right in personal data and to limit the amount of personal information that can be lawfully collected about individuals online. The Fourth Amendment, protecting “persons, houses, papers, and effects” from unreasonable searches must be interpreted to ensure privacy for personal data. The evolving nature of data privacy protections and global data privacy standards emphasizes the necessity to develop clear standards and statutes to protect an individual’s interest in their personal data. Statutes such as the E.U.’s GDPR and California’s CCPA, provide a regulatory framework on how to approach data privacy on the federal level. Using a property-based approach to “effects” and personal data can provide a significant resurgence and revolution in protecting individual privacy. Expanding this privacy right through a legislative approach and the ‘mere evidence’ rule will reform the convoluted ‘reasonable expectation of privacy’ framework outlined in Katz v. United States and its progeny.

Ought from is: Towards Truly Reasonable Expectations of Privacy

Ought from is: Towards Truly Reasonable Expectations of Privacy

Legal framework for privacy in technological advanced society

This article will review the genesis of the "reasonable expectation of privacy" ("REP") requirement, both to establish the governing legal framework and to demonstrate how changing technology has altered our conception of the privacy in the past аnd describes the limits and ability of government agents to search for and seize evidence without a warrant

Privacy and Police Investigations: ZXC v Bloomberg

This case note discusses the implications of the English Court of Appeal's conclusion in ZXC v Bloomberg that, as a general rule, claimants will have a reasonable expectation of privacy in respect of the fact and details of a police investigation into their conduct (up to the point of charge). Because this enables claimants to use privacy to protect their reputation, the decision has significant ramifications for the law of defamation. The note also suggests that courts should consider the ongoing relevance of breach of confidence decisions stating that information obtained in the exercise of a legal power or in furtherance of a public duty should be treated as confidential.

Fourth Amendment Protections of Prescription Drug Monitoring Programs: Patient Privacy in the Opioid Crisis.

The opioid crisis is one of the largest public health problems in the history of the United States. Prescription drug monitoring programs ("PDMPs")-state databases containing the records of all prescriptions for controlled substances written in the state-have emerged as a means to track opioid prescribing and use. While PDMPs are typically used as a tool for physicians to inform their prescribing practices, many states also permit law enforcement to access PDMPs when investigating controlled substance distribution, often without prior judicial approval. Such law enforcement use of PDMPs raises serious questions of patient privacy. The Fourth Amendment protects individuals from unreasonable searches and seizures where they have a reasonable expectation of privacy and has been interpreted to require law enforcement have probable cause and a search warrant before infringing upon an individual's reasonable expectation of privacy. Several courts have held that patients have no reasonable expectation of privacy, or a severely diminished expectation of privacy, in their prescription drug records held in PDMPs. As support, courts rely on the third-party doctrine because the information is disclosed to physicians and then held by the state; the highly regulated nature of the prescription drug industry; and the statutory framework of the Controlled Substances Act. Such analysis disregards patients' expectation of privacy in their personal health information, the confidentiality in the physician-patient relationship, and the resulting patient incentives not to seek care. Therefore, this Article argues that law enforcement must have probable cause and a search warrant to access PDMPs because the exceptions to the Fourth Amendment's probable cause and warrant requirements do not apply.

Police Investigations: Confidential (Perhaps) but Not Private

A handful of recent English authorities have held that, up to the point of charge, individuals will usually have a reasonable expectation of privacy in respect of police investigations into their conduct. This article argues this is problematic. It maintains, first, that neither the potential confidentiality of police investigations nor the need to protect a claimant’s reputation provides a sound basis for concluding that such investigations should generally be private. Then it argues that the fact that a police investigation into one’s conduct is taking place does not sit comfortably with the types of private information usually protected by English courts (e.g. information about one’s health or sexual life). Finally, it says the reasonable expectation of privacy in respect of police investigations needs to be reconciled with the well-established common law principle that individuals should not be allowed to suppress evidence of their own wrongdoing.

Supercharged Sexism: The Triple Threat of Workplace Monitoring for Women

As biometric monitoring becomes increasingly common in workplace wellness programs, there are three reasons to believe that women will suffer disproportionately from the data collection associated with it. First, many forms of biometric monitoring are subject to gender bias, among other potential biases, because of assumptions inherent in the design and algorithms interpreting the collected data. Second, the expansion of femtech in particular creates a gender-imbalanced data source that may feed into existing workplace biases against women unless more effective safeguards emerge. Finally, many femtech platforms encourage the kind of information sharing that may reduce women’s reasonable expectations of privacy, especially with regard to fertility data, thus increasing the risk of health data privacy invasion. This triple threat to female workers may be offset somewhat by the benefits of health data collection at work and may be remedied at least in part by both legislative and non-legislative means. The current trend toward greater health data collection in the wake of COVID-19 should provoke a reexamination of how employers collect and analyze women’s health data in order to reduce the impact of these new gender bias drivers.

Medical and Ethical Analysis of Menstrual Apps [26I

INTRODUCTION: The recent explosion of digital health applications includes emergence and growing popularity of smartphone apps for women’s health, most commonly menstrual tracking apps. Meanwhile, monetization of women’s sensitive health data has led to public outcry and ethical concerns. Greater understanding of medical and ethical aspects of menstrual app use is needed. METHODS: We survey women’s menstrual app use, highlighting issues related to beneficence, autonomy and justice. RESULTS: These technologies may benefit women by empowering better control over contraceptive intentions or pregnancy desires and greater insights into reproductive health, however harms may occur when technology fails, most notably in the case of unintended pregnancies among women using apps with flawed ovulatory prediction algorithms. Autonomy may be compromised if women cannot control third-party use of highly sensitive reproductive health data (e.g., when, where and who they have sex with), particularly when ability to use apps is conditioned on “accepting the cookies” and potentially misleading small-print notice/informed consent regarding reasonable expectations of privacy and potential data uses. These apps normalize a new frontier for ubiquitous data surveillance, gathering health-relevant data outside of the traditional healthcare contexts where it is not afforded appropriate legal or ethical protection. Menstrual apps may promote commodification of women’s bodies by harnessing personal data to generate advertisement revenue. CONCLUSION: Current menstrual apps raise concerns regarding their effectiveness for promoting women’s health, expectations of privacy and appropriateness of monetization of inherently sensitive health data. Emerging technologies such as blockchain and privacy-preserving computation may support more woman-centric menstrual apps; further research is warranted.

Corrigendum: Reasonable Expectations of Privacy and Disclosure of Health Data.

Corrigendum: Reasonable Expectations of Privacy and Disclosure of Health Data.

Police investigations, privacy and the Marcel principle in breach of confidence

*A number of recent English decisions have supported the idea that, in general, a person will have a reasonable expectation of privacy in respect of a police investigation into his or her conduct (...

How Definitive is Fourth Amendment Textualism?

Professor Jeffrey Bellin’s excellent article advances a comprehensive and straightforward textual approach to determining what policing activities constitute “searches” triggering the protections of the Fourth Amendment. Bellin’s thesis is that a text-based approach to interpreting the Amendment is superior to the Supreme Court’s current approach, which ever since Katz v. United States has defined “search” primarily by reference to a non-textual “reasonable expectation of privacy” standard. After soundly criticizing the ungrounded and highly subjective nature of the Katz test, Bellin declares that the Court should instead simply follow where the text leads: the Amendment protects people from a search, meaning an “examination of an object or space to uncover information” of their own “persons, houses, papers, and effects.” No more, no less. Such a textual approach generates new doctrinal rules that would replicate Katz’s outcomes in many respects and provide either more or less protection in others.

Audiovisual recording in the emergency department: Ethical and legal issues

Emergency physicians, organizations and healthcare institutions should recognize the value to clinicians and patients of HIPAA-compliant audiovisual recording in emergency departments (ED). They should promote consistent specialty-wide policies that emphasize protecting patient privacy, particularly in patient-care areas, where patients and staff have a reasonable expectation of privacy and should generally not be recorded without their prospective consent. While recordings can help patients understand and recall vital parts of their ED experience and discharge instructions, using always-on recording devices should be regulated and restricted to areas in which patient care is not occurring.Healthcare institutions should provide HIPAA-compliant methods to securely store and transmit healthcare-sensitive recordings and establish protocols. Protocols should include both consent procedures their staff can use to record and publish (print or electronic) audiovisual images and appropriate disciplinary measures for staff that violate them. EDs and institutions should publicly post their rules governing ED recordings, including a ban on all surreptitious or unconsented recordings. However, local institutions may lack the ability to enforce these rules without multi-party consent statutes in those states (the majority) where it doesn't exist. Clinicians imaging patients in international settings should be guided by the same ethical norms as they are at their home institution.

Transparency is the New Privacy: Blockchain's Challenge for the Fourth Amendment

Blockchain technology is now hitting the mainstream. With the advent of enterprise blockchains, smart contracts, and corporate cryptocurrencies, countless human interactions, legitimate and illegitimate, are being and will be recorded permanently — and visibly — into distributed digital ledgers. Mass surveillance of day-to-day transactions will never have been easier. This article is the first to analyze blockchain protocols within the Fourth Amendment framework. Blockchain’s open, shared digital architecture challenges us to reassess two core premises of modern Fourth Amendment doctrine: that a “reasonable expectation of privacy” upholds the Amendment’s promise of a right to be “secure” against “unreasonable searches,” and that “a reasonable expectation of privacy” is tantamount to total secrecy. The article argues that these current doctrines rest on physical-world analogies that do not hold in blockchain’s unique digital space. Blockchain’s architecture particularly unsettles the physical-world rationales that underpin received Fourth Amendment distinctions such as public/non-public and content/non-content, as well as the third-party and false friend doctrines. Instead, this article argues that blockchain can create security against unreasonable searches, within the Amendment’s meaning, even for data that are shared or public. The key is control, not secrecy. The article weaves together a focused technical analysis of blockchain’s architecture and a careful assessment of current Fourth Amendment jurisprudence and historical context. It builds on scholarly critiques of current Fourth Amendment doctrine, and reveals the surprising connections between blockchain’s philosophical goals and Fourth Amendment theory, showing that blockchain’s open distributed architecture does the work in digital space that privacy does in the physical world to advance Fourth Amendment values such as security, control of information, expression, and personal autonomy. The article also evaluates textualist approaches to blockchain, concluding that blockchain data are an “effect,” subject to trespassory searches under the Supreme Court’s rubric in United States v. Jones. Finally, the article proposes an analytical framework for Fourth Amendment protections for distributed ledgers — corresponding to the levels to which blockchain users evince control of their data — that is grounded in text and theory and that is administratively practicable for courts.

Reasonable Expectations of Privacy and Disclosure of Health Data.

Reasonable Expectations of Privacy and Disclosure of Health Data.

Property, Privacy, and Justice Gorsuch's Expansive Fourth Amendment Originalism

In Carpenter v. United States, the Supreme Court reaffirmed the continuing vitality of the privacy framework Katz v. United States established in 1967 for identifying Fourth Amendment searches. Justice Neil Gorsuch, in dissent, critiqued Katz as indeterminate and inconsistent with democratic values. In this article, I analyze Justice Gorsuch’s proposed alternative framework, which he described as the “traditional approach” to determining Fourth Amendment interests. Instead of grappling with the indefinite and textually and historically unfounded “reasonable expectations of privacy” framework of Katz, Gorsuch asserted, this traditional test would require judges to focus on whether a “house, paper, or effect was yours under law.” Although Gorsuch offered preliminary thoughts on this rubric, his opinion left open important questions, including the sources of law to which the Court should look in identifying property interests; the breadth of the definitions of “papers” and “effects” and the kinds of property closely enough associated with the person for potential implication of Fourth Amendment rights; and the ways in which government conduct impinging on such property interests might trigger Fourth Amendment protection. Several passages in Justice Gorsuch’s opinion suggest that he would take a broad, flexible approach to each of these issues. Overall, whatever ambiguities exist in Gorsuch’s dissent, it is certain that his property model would be more expansive than the pre-Katz trespass test that the Court rehabilitated in 2012. If that is the case, however, then the results that courts would be likely to reach under this framework might closely resemble outcomes under a principled privacy-based analysis. Additionally, because a broad property rubric would involve a significant degree of judicial discretion, it would replicate Katz’s indeterminacy. Thus, while Gorsuch’s approach might carry forward the benefits associated with Katz’s flexibility, it would also reproduce Katz’s associated flaws, including manipulability and democratic illegitimacy. Nonetheless, Justice Gorsuch might favor a flexible “traditional approach” over Katz because its explicit attention to the language of the Fourth Amendment is more conceptually elegant and, at least aesthetically, more consistent with Gorsuch’s originalist sympathies.