Reasonable Expectation of Privacy
posted by Gerard Magliocca
While I’m not a Fourth Amendment expert, that won’t stop me from saying something about Jones. I think that Justice Sotomayor’s concurring opinion, which calls into question the rule that there is no reasonable expectation of privacy when information is disclosed to a third-party outside of a confidential relationship recognized by the common law (lawyer/client, doctor/patient, etc.), should start a conversation about abolishing this outdated tort concept.
It seems to me that trade secret law provides a better model. The inquiry there is whether the owner of the information takes reasonable precautions to preserve its secrecy. Disclosure to a third-party does not automatically end legal protection, and custom is relevant for defining whether the third-party disclosure constitutes a waiver. Now adopting this standard would probably lead to more intrusion upon seclusion claims, but it is also more realistic in the social media age. I doubt that I’m the first one to suggest this approach, but I don’t know.
UPDATE: Some quick research shows that a Note in the Georgetown Law Journal did make this proposal with respect to the Fourth Amendment, though not for tort law. See Andrew Riggs Dunlap, Fixing the Fourth Amendment With Trade Secret Law, 90 Geo. L. J. 2175 (2002).