Too Much Information: How Not to Think About Privacy and the Fourth Amendment

Too Much Information: How Not to Think About Privacy and the Fourth Amendment


David Alan Sklansky

just in the sense that the explosive growth of digitized informationrequires rethinking traditional rules of search and seizure, but alsoand more importantly in the sense that a preoccupation with dataflows has led to the neglect of important dimensions of privacy. Thereis no doubt that the control of personal information is an importantvalue and one uniquely threatened by the rise of social media, theproliferation of technological surveillance, and the arrival of BigData. But the reduction of privacy to control over information hasmade it more difficult to think sensibly about the distinctive threatsraised by government searches, and it is partly to blame for thegrowing and unwarranted sense that the Fourth Amendment shouldbe decoupled from privacy-because the concept of privacy ismeaningless, because privacy is dead or dying, or because the mainthreats to privacy are largely orthogonal to the chief dangers posed by law enforcement. Search-and-seizure law would be better servedby an understanding of privacy rooted in respect for a zone of refugeand informed by privacy’s longstanding associations withenclothement, retreat, and personal sovereignty. This alternativeconception of privacy-privacy as refuge-should also be attentive tothe relational nature of privacy, the connection between privacy andcivility, and the effects of privacy violations on the perpetrators aswell as the victims.

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