Life in the Digital Age: Is There Such a Thing as a Reasonable Expectation of Privacy?

A few weeks ago, I presented a webinar about the Fourth Amendment in the digital age. In preparation, I tried to find out as much as I can about the different ways law enforcement uses technology in investigations and if and when those uses constitute a search under the Fourth Amendment. What I discovered, boiled down to its most basic, is that if law enforcement can do it in a low-tech way, they can do it high tech. So, for example, if an officer standing on the sidewalk could see into your backyard, then a camera placed on a pole with the same viewpoint would work just as well.

The leading case right now is United States v. Jones, the U.S. Supreme Court’s GPS case from last summer, authored by Justice Scalia. Originally, whether something constituted a search for purposes of the Fourth Amendment had been closely tied to common-law trespass and a person’s connection to property. Over the years, the property-based approach was somewhat pushed aside and the focus was on protecting people, not places. The concept “reasonable expectation of privacy” was born and had been the focus of Fourth Amendment jurisprudence. Then came Jones. Jones circles back to property and the concept of trespass. Under Jones, trespass plus an effort to obtain information is a search, warranting the protections of the Fourth Amendment.

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Same-Sex Marriage as Divorce

supreme courtBack in 2010, I wrote an article (published in January 2011) asking the question of, essentially, what if the states became stuck on the question of whether same-sex couples could get married? What if they divided, half of them banning same-sex marriages as an affront to the dignity of marriage, and half of them insisting upon the right of their citizens to marry someone of the same sex? Would the states be locked into a patchwork quilt of marriage and non-marriage, with married couple’s rights fading in and out of existence as they crossed the country, or was there some way out of the dilemma?

Our system was born federalist in 1789 but has been getting progressively more nationalist ever since. Most issues that divide the country can be resolved in some way at the national level, either by Congress passing a law under its increasingly expansive Commerce or Spending Clause powers, or by the Supreme Court wielding the Bill of Rights and the Due Process or Equal Protection clauses of the Fourteenth Amendment. But that does not cover the universe of potentially divisive issues. Particularly destabilizing are social statuses designated by state law but not one of the “suspect classifications” of the Equal Protection Clause. For example, same-sex marriage.

In my article, I considered a way to resolve the inevitable disputes that would arise if the system became stuck: half the states recognizing same-sex marriage, half not, and the Supreme Court unwilling to extend Equal Protection doctrine to cover sexual orientation. But towards the end, I noted another possible outcome: the dispute over same-sex marriage could follow the path divorce did in the early twentieth century.

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Constitutional Adjudication and Social Division – A Judicial Perspective

I am pleased to be leading a very vibrant seminar this semester, during which we contemplate the judicial process as evident in constitutional/human rights decisions from jurisdictions as far-flung as Germany, Jamaica and India. Covering a range of substantive topics, from torture to religious freedom to socio-economic rights, our discussions and analysis can be distilled down to two underlying questions: what do judges say they are doing, and what are judges actually doing? A plethora of historical/social/contextual factors feed into the judicial process, and determine the scope and nature of the project of constitutional adjudication.

The upcoming SCOTUS decisions on the 1996 Defense of Marriage Act (denying federal benefits to same-sex couples that are legally married in their states) and California’s Proposition 8 (a voter-approved ban on same-sex marriage), in addition to their potentially profound personal significance to persons on all sides of the marriage debate, will no doubt provide rich fodder for human rights jurists.

So it is timely, I believe, to bring attention to the story of South Africa’s constitutional adjudication of this sensitive issue, and to consider the role the South African Constitutional Court sees itself playing when it deals with the complexities of constitutional rights.

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