Why courts fail to protect privacy: race, age, bias, and technology

The Fourth Amendment protects against unreasonable "searches and seizures," but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question depends on and reflects the "reasonable expectations" of ordinary members of the public concerning their own privacy. For example, the police now exploit the "third party" doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court's intuition that the public has no expectation of privacy in that information. Is that assumption correct? If judges' intuitions about privacy do not reflect actual public expectations, it may undermine the legitimacy of the criminal justice system, exacerbate social unrest, and produce unjust outcomes. participants of the University of Arizona Quantlaw Conference for their helpful comments. Finally, we would like to thank the Hughes Research and Development Committee at the University of Denver which provided both guidance and funding.