The Limits of Reasonableness: The Failures of the Conventional Search and Seizure Paradigm in Information - Rich Environments

Abstract

This essay discusses the viability of conventional search and seizure privacy protections in "information-rich" environments. Information-rich environments have the potential to gut conventional privacy protections; protections that depend in large measure on the historic logistical difficulties associated with collecting, storing and transmitting information. Those hurdles are overcome in the modern period, with the result that conventional search and seizure style privacy rules no longer adequately defend liberty. By necessity, therefore, privacy law doctrine must evolve to recognize that the scale and quantity of data collection create a qualitative (and not just quantitative) shift. Courts must recognize new concepts, such as the mosaic effect of privacy erosion. More generally, institutional rules must be developed to manage information once collected. A failure to take this steps risks maintaining an illusion of privacy protection without honouring the underlying right at issue; the right to be left alone.

Keywords: privacy law, search and seizure, fourth amendment, charter of rights and freedoms, surveillance