Is the end of the ‘reasonable expectations of privacy’ doctrine near?


NY judge Edward Korman has ruled that searching (laptops) at the border is not really an an invasion of privacy (because everyone knows they may be searched):

“The invasion of privacy occasioned by such a border search, however, like the search of luggage, briefcases, and even clothing worn by a person entering the United States, is mitigated by other factors….. As Professor LaFave observes, because “the individual crossing a border is on notice that certain types of searchers are likely to be made, his privacy is less invaded by those searches.” …. Thus, “[t]he individual traveler determines the time and place of the search by his own actions, and he thus has ample opportunity to diminish the impact of that search by limiting the nature and character of the effects which he brings with him.”

As Techdirt’s Mike Masnick observes:

“This seems problematic on multiple levels. First, if we go by the idea that there’s less of a privacy violation because you know it’s coming, then that gives the government the right to ignore the 4th Amendment so long as it tells you ahead of time that it’s going to ignore the 4th Amendment. Even the Supreme Court in Smith v. Maryland — the infamous case concerning the 3rd party doctrine — states that such a scenario is ridiculous, and that just because you know that you’re going to be searched, it doesn’t automatically make the search reasonable.”

[via Techdirt]

The reasonable expectations doctrine in my view is awkward because of its inherent slippery slope. Maybe the Supreme Court gets a chance to follow up on Jones and set new standards.