Judge Frank Easterbrook and Professor Lawrence Lessig had a famous exchange in the late 1990s regarding cyberspace law. Easterbrook argued that scholars and judges ought not waste energy developing a body of law specific to cyberspace. Such law would be as parochial and rapidly obsolete as a “law of the horse,” or a body of law governing behavior on horseback. The phrase is borrowed from Carl Llewellyn, who used it illustrate his reasons for making the UCC’s contract rules generalizable, rather than specific to particular contexts. Easterbrook opined that such technology-specific law would not “illuminate the entire law.”
Lessig responded by arguing that values are imbedded in technology itself. Technological changes can displace values currently expressed by the law, forcing government to choose whether to accept the displacements or use law to reinforce existing values. In regulating new technology, we must decide whether the technology displaces values so important that “law might respond to reclaim the values displaced.” Law directed at particular technological areas does in fact “illuminate the entire law,” because it responds to unique technological challenges to our values.
It is worth revisiting Easterbrook and Lessig’s exchange in light of the Supreme Court’s recent ruling on US v. Jones. (For MTTLR Blog’s previous coverage on US v. Jones, see here, here and here.) The Court seemed wrong-footed by precisely the phenomenon that Lessig identified: technology had displaced the values in existing law. The “reasonable expectation of privacy” test, from US v. Katz (1967), has lost its clarity because technological developments have altered those expectations. Justice Alito competently articulates this point in his concurrence. He notes that historically, the most important privacy protections have been practical rather than legal.
Extrapolating from Alito’s position, it seems implausible that the “reasonable expectation” test protects privacy interests exclusively because they are reasonably expected. More likely, it indicates that Fourth Amendment protects privacy interests roughly coextensive with those that a reasonable person expected in 1967. The Katz court could not have meant that Fourth Amendment protections erode with the progress of monitoring technologies.
Alito is right then, to suggest that the courts need not dumbly wait for legislation. Courts can respond proactively to new technologies because the law is an expression of values. When technology challenges or, in Lessig’s words, “displaces” those values, the courts must be ready to use existing law to push back. The Court thus need not have punted to avoid interpreting the reasonable privacy expectation.