Future of the Expectation of Privacy after U.S. v. Jones

Criminal Law & Procedure Practice Group Teleforum

In her concurrence in United States v. Jones, Justice Sotomayor wrote that it "may be necessary" for the Court to abandon its long-standing rule that an individual has no reasonable expectation of privacy under the Katz test in information voluntarily disclosed to third parties or to the general public. Sotomayor argued that such a rule was "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is . . . disentitled to Fourth Amendment protection."

Should the longstanding Katz standard concerning information disclosed to third-parties be re-evaluated, either from a statuory or constitutional perspective? Alternatively, would Justice Sotomayor's proposed re-evaluation of this standard represent a huge boon for criminals who seek to keep their online conduct hidden from detection by law enforcement?

Featuring:

• Prof. Orin S. Kerr, The George Washington University Law School
• Mr. Jamil N. Jaffer, Senior Counsel, House Permanent Select Committee on Intelligence

In her concurrence in United States v. Jones, Justice Sotomayor wrote that it "may be necessary" for the Court to abandon its long-standing rule that an individual has no reasonable expectation of privacy under the Katz test in information voluntarily disclosed to third parties or to the general public. Sotomayor argued that such a rule was "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is . . . disentitled to Fourth Amendment protection."

Should the longstanding Katz standard concerning information disclosed to third-parties be re-evaluated, either from a statuory or constitutional perspective? Alternatively, would Justice Sotomayor's proposed re-evaluation of this standard represent a huge boon for criminals who seek to keep their online conduct hidden from detection by law enforcement?

Featuring:

• Prof. Orin S. Kerr, The George Washington University Law School
• Mr. Jamil N. Jaffer, Senior Counsel, House Permanent Select Committee on Intelligence

Call begins at 3:00 p.m. Eastern Time.

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