That's the title of today's DJ column by Justice Hoffstadt, which concerns "the U.S. Supreme Court's efforts to apply the Fourth Amendment to new technologies." He begins, "2017 is here. We are now part way between the idyllic 2015 depicted in 'Back to the Future II' and the dystopian 2019 portended in 'Blade Runner.' Neither prognostication got it completely right, but
both accurately predicted the continued advance of technology." And he concludes:
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| Finding the right analogy can be tricky business. |
"... courts could stop looking for analogies as a descriptive
measure of the intrusiveness of a particular technology under the Fourth
Amendment's privacy rationale, and instead define the boundaries of privacy normatively
by specifying what those boundaries should be. In other words, courts could
stop defining privacy by looking to what people in the real world actually
expect and instead define it by examining the level of privacy people should
expect. Or courts could adopt an entirely new rationale for the Fourth
Amendment that does not look to privacy at all, and define the amendment's
scope by some new and different paradigm.
Only time will tell which of these paths the Supreme
Court will take. Let us hope that this future gives us a satisfying and useful
answer. And some hover boards."
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