What is a Search: Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy

Abstract

"What Is A Search: Two Conceptual Flaws in Fourth Amendment Doctrine & Some Hints of a Remedy" analyzes and critiques Fourth Amendment doctrine addressing the question of which government activities count as "searches" for Fourth Amendment purposes. The Article contends that the original articulation of the "reasonable expectation of privacy" standard in Katz v. United States made sense, but that the Court has, in subsequently applying and developing it, effectively robbed the doctrine of its protective power. It has done so through the use of two "moves" that are identified and developed in the Article: the equation of risk with invitation, and the equation of limited with absolute exposure. The Article demonstrates the pervasiveness of these moves as well as the perverse consequences of their application for the future of privacy.