The “expectation of privacy” has been a touchstone of privacy law since U.S. Supreme Court Justice John M. Harlan first enunciated the phrase four decades ago.[FOOTNOTE 1] But applying that characterization has proved difficult. One focus of privacy has been the notion that a man’s home is his castle. But how far beyond the home should the expectation extend? And applying the characterization to advancing technology has proved especially troubling.
Consider an advance that permits easy, inexpensive and comprehensive gathering of information that previously was lawfully collectible, but only with a great expenditure of resources. Should a quantum jump in the ease, inexpensiveness and magnitude of collection alter the expectation? The New York Court of Appeals recently grappled with these issues in People v. Weaver, a 4-3 decision handed down on May 12.[FOOTNOTE 2]
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