The Supreme Court has concluded that the Fourth Amendment's protections do not apply to information that has been exposed to the public. This conclusion is deeply flawed and derives from the mistaken conflation of anonymity and privacy. Although anonymity and privacy are similar in that both maintain the secrecy of personal information, they differ in a fundamental and legally relevant way: privacy hides the information, whereas anonymity hides what makes it personal. Understanding this difference reveals compelling substantive and formal reasons for interpreting the Fourth Amendment to protect not only reasonable expectations of privacy, but also "reasonable expectations of anonymity." Further, the incorporation of this new analytic concept into Fourth Amendment jurisprudence yields significant value: first, by identifying otherwise-unrecognizable ways in which new techniques of big data implicate the Constitution, and second, by delivering on the unfulfilled promise of the Supreme Court's teaching that the Fourth Amendment "protects people, not places."
25 February 2015
'Reasonable Expectations of Anonymity' by Jeffrey M. Skopek in (2015) 101 Virginia Law Review argues