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dealing with video surveillance, intrusion into it would be patently litigation journal that for “every
monitoring of employees’ “unreasonable” and (presumably) inveterate user of social media
computers, and drone issues, unconstitutional. who tweets random comments
among others. Often, the battle while standing in line at the
lines are drawn no farther away Since then, new technologies have grocery store, there is someone
than city hall or the school district presented new challenges related ... who is indignant when she
office. to privacy expectations. In 2012, learns that the cookies in her web
Justice Samuel Alito opined for browser permit all manner of
What Are “Reasonable the Court in U.S. v. Jones: advertisers to include her in their
Expectations of Privacy” Today? target audience.” When individual
“[T]he Katz test rests on norms vary so broadly on the
As the framers debated the the assumption that this terrain of constant technological
Fourth Amendment following the hypothetical reasonable change, what constitutes a
1787 Constitutional Convention, person has a well- “reasonable person’s” expectation
the word “search” typically developed and stable set of privacy? Perhaps continued
meant physically breaking into of privacy expectations. dialogue will create a standard
someone’s house and searching But technology can change adaptable enough to survive the
it. It took the Supreme Court those expectations. ... New challenges of new technologies.
almost 200 years to articulate technology may provide In the meantime, local agencies
that an unreasonable “search” increased convenience or will have to walk this thin line
could be something more than security at the expense of carefully, and are well advised to
just a physical intrusion. In privacy, and many people may work closely with legal counsel
1967, the Court held in Katz find the trade-off worthwhile. on how best to do it, protecting
v. United States that taping a And even if the public does their constituents’ safety while
microphone to the top of a phone not welcome the diminution of respecting their privacy. 
booth and listening in on a call privacy that new technology
“searched” the phone booth, entails, they may eventually Roberta L. Rowe is a Partner in
though there was no physical reconcile themselves to this Lozano Smith's Fresno office.
intrusion. In Katz, Justice John development as inevitable.” rrowe@lozanosmith.com
Harlan introduced the concept
of a “reasonable expectation of In contrast, U.S. District Court Lee Burdick is Senior Counsel in
privacy.” He defined it this way: Judge Jeremy Fogel of the Lozano Smith’s Fresno office.
Is society prepared to recognize Northern District of California lburdick@lozanosmith.com
an expectation of privacy as reminded us in a 2014 article for
reasonable? If so, a government the American Bar Association’s

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