Morgan Cloud, ‘Property Is Privacy: Locke and Brandeis in the Twenty-First Century’

For fifty years Katz v United States has played a central role in defining both how the Fourth Amendment regulates electronic surveillance by the government and the nature of the links between the Fourth Amendment and property rights – links established by the Amendment’s eighteenth century text. In Katz, the Supreme Court attempted to create a theory for resolving both issues by disavowing the traditional property-based foundations of Fourth Amendment rights and replacing them with an analytical process that has come to be known as the reasonable expectation of privacy test. The central theme of this article is that the decision to abandon the property basis for rights adopted in the Fourth Amendment was unnecessary …

Cloud, Morgan, Property Is Privacy: Locke and Brandeis in the Twenty-First Century (July 27, 2017). American Criminal Law Review, forthcoming.

First posted 2017-08-02 06:39:19

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