David Alan Sklansky,
Too Much Information: How Not to Think About Privacy and The Fourth Amendment,
102 Cal. L. Rev. 1069
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol102/iss5/7
Fourth Amendment law today is overloaded with information: not just in the sense that the explosive growth of digitized information requires rethinking traditional rules of search and seizure, but also and more importantly in the sense that a preoccupation with data flows has led to the neglect of important dimensions of privacy. There is no doubt that the control of personal information is an important value and one uniquely threatened by the rise of social media, the proliferation of technological surveillance, and the arrival of Big Data. But the reduction of privacy to control over information has made it more difficult to think sensibly about the distinctive threats raised by government searches, and it is partly to blame for the growing and unwarranted sense that the Fourth Amendment should be decoupled from privacy—because the concept of privacy is meaningless, because privacy is dead or dying, or because the main threats to privacy are largely orthogonal to the chief dangers posed by law enforcement. Search-and-seizure law would be better served by an understanding of privacy rooted in respect for a zone of refuge and informed by privacy’s longstanding associations with enclothement, retreat, and personal sovereignty. This alternative conception of privacy—privacy as refuge—should also be attentive to the relational nature of privacy, the connection between privacy and civility, and the effects of privacy violations on the perpetrators as well as the victims.