Gray, David C. and Citron, Danielle Keats, A Technology-Centered Approach to Quantitative Privacy (August 14, 2012). Available at SSRN
“Our analysis and proposal draw upon insights from information privacy law. Although information privacy law and Fourth Amendment jurisprudence share a fundamental interest in protecting privacy interests, these conversations have been treated as theoretically and practically discrete. This Article ends that isolation and the mutual exceptionalism that it implies. As information privacy scholarship suggests, technology can permit government to know us in unprecedented and totalizing ways at great cost to personal development and democratic institutions. We argue that these concerns about panoptic surveillance lie at the heart of the Fourth Amendment as well. We therefore propose a technology-centered approach to measuring and protecting Fourth Amendment interests in quantitative privacy. As opposed to proposals for case-by-case assessments of information mosaics, which have so far dominated the debate, we argue that government access to technologies capable of facilitating broad programs of continuous and indiscriminate monitoring should be subject to the same Fourth Amendment limitations applied to physical searches.”
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