Resource: Another Bite out of Katz: Foreign Intelligence Surveillance and the Incidental Overhear Doctrine

By: Elizabeth Goitein

January 1, 2018

American Criminal Law Review

Although the “reasonable expectation of privacy” test set forth in Katz represented a historic expansion of the Fourth Amendment’s right to privacy, it has few defenders among privacy scholars today. It is vulnerable to critique on a number of fronts: it is circular and gives courts little guidance;1 it is not able to keep up with technology, given the lag time between the hardening of expectations and judicial review;2 its two prongs require a subjective assessment that is easily gamed,3 combined with an empirical analysis that courts are not well-positioned to undertake;4 and so on. Perhaps the most visible critique relates to one of Katz’s offshoots: the so-called “third-party doctrine,” under which courts have held that a person loses any reasonable expectation of privacy in information voluntarily disclosed to a third party.5 Critics argue that this doctrine falsely equates privacy—which encompasses, or should encompass, the limited disclosure of information to trusted associates of one’s choosing—with secrecy.6 They note that it is particularly untenable in an era in which we must routinely disclose communications, as well as information about those communications (known as “metadata”), to Internet service providers, mobile phone companies, and other intermediaries.7 The third-party doctrine is indeed deeply flawed and in need of rethinking. That rethinking, however, is well underway. Both on the legislative front and in the courts, an overhaul of the doctrine—one that, at a minimum, recognizes privacy in the content of electronic communications, if not the metadata—appears inevitable, even if it is coming decades later than it should have.8 On the other hand, there is an area in which both legislative policy and the Fourth Amendment case law are moving in the direction of providing less protection for the privacy of electronic communications: foreign intelligence surveillance.