Is this Supreme Court going to find that the 4th Amendment applies to information that a person wants to keep private?
Curtilage, for those of you who do not have the Constitution and its volumes of case law committed to memory, is the area immediately around a house. Yes, yes, I'm sure the constitutional scholar types are having a fit right now. After all, I am simplifying a concept that has thousands of pages of case law and briefs dedicated to it. Nevertheless, this area enjoys the same privacy protection as if it were in the house itself. This means the police typically need a warrant to search it.
Erwin Chemerinsky, Dean of the UC Irvine School of Law, hopes that the Supreme Court will bring the 4th Amendment into the 21st Century. The Court will be hearing two cases which include the issue of whether the police may look at a suspect's cell phone following an arrest. In Dean Chemeerinsky's view, the question is this: "What is the Fourth Amendment's protection for informational privacy?"
An interesting concept - informational privacy. Conspiracy theories aside, I would like to think the government isn't quite to the point of reading our minds...yet. Thankfully, the government can't hook us up to a mind reading machine and pull information out...yet. So the concept of informational privacy applies to the devices we use to store information outside of the brain; i.e., smart phones, iPads, computers, etc.
Although he doesn't use the terms "curtilage" to describe our beloved personal electronic devices, the comparison is made easily enough. By advocating that the government needs probable cause and a warrant to search a smart phone, Chemerinsky is declaring a smart phone to be within the curtilage of our memory / brain (you know, the place you used to remember phone numbers and addresses before the age of Google).
It certainly is an interesting concept, and it begs the question: where does curtilage stop and the open fields begin? Does a person's friends-only section of Facebook enjoy the same protections? Sure, we're publicizing information to our friends, but is it the same as taking out a newspaper ad for everyone to see?
Exit question: will the Supreme Court eventually find that there is a right to virtual privacy? The NSA certainly hopes not.
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