Law Commons^™

Under current doctrines, parties to a communication enjoy robust constitutional protection against government surveillance only when they have a reasonable expectation of privacy in those communications. This paper suggests that the surprising dearth of case law applying the reasonable expectations of privacy test to modern electronic communications reflects courts' discomfort with the test's necessarily normative analysis. That discomfort also likely explains courts' use of shortcuts based on Miller v. United States and Smith v. Maryland in those few cases that have considered online surveillance practices. In particular, the government has argued that a broad third party rule deprives electronic mail …