Reasonable Expectations of Privacy and Novel Search Technologies: An Economic Approach
54 Pages Posted: 21 Jul 2007 Last revised: 7 Oct 2007
Abstract
The reasonable expectation of privacy test, which defines the scope of constitutional protection from governmental privacy intrusions in both the United States and Canada, is notoriously indeterminate. This indeterminacy stems in large measure from the tendency of judges to think of privacy in non-instrumentalist terms. This moral approach to privacy is normatively questionable, and it does a poor job of identifying the circumstances in which privacy should prevail over countervailing interests, such as the deterrence of crime. In this Article, I develop an alternative, economically-informed approach to the reasonable expectation of privacy test. In contrast to the moral approach, which treats privacy as a fundamental right, the economic approach views it as an (normatively neutral) aspect of self-interest: the desire to conceal and control potentially damaging personal information. According to this view, privacy should not be protected when its primary effect is to impede the optimal deterrence of crime. In other cases, however, legal protections against governmental surveillance may enhance social welfare by encouraging productive transactions, diminishing the costs of non-legal privacy barriers, and limiting suboptimal policing practices such as discriminatory profiling and the enforcement of inefficient criminal prohibitions. Economics and public choice theory can also help to minimize decision-making error by predicting which legal actors - police, legislatures, or courts - are best placed to make optimal trade-offs between privacy and crime control.
Keywords: fourth amendment, search and seizure, privacy, technology, surveillance, charter, s. 8, law and economics, criminal procedure
JEL Classification: K14, K42
Suggested Citation: Suggested Citation