Justice Neil Gorsuch is challenging the Supreme Court's long-standing "reasonable expectation of privacy" test, arguing the standard fails to protect citizens from government surveillance. Gorsuch proposes replacing it with an approach rooted in property rights and trespass doctrine, a fundamental shift in Fourth Amendment jurisprudence.
The current framework, established in Katz v. United States (1967), asks whether a person has a subjective expectation of privacy that society recognizes as reasonable. Gorsuch contends this test has become unreliable as technology evolves. When people adopt new technologies, their privacy expectations adapt downward, making the standard self-defeating. Government surveillance becomes normalized, lowering the threshold for what courts consider "reasonable."
Gorsuch's alternative draws from the Supreme Court's 2012 decision in United States v. Jones, which held that attaching a GPS tracker to a vehicle constitutes a trespass and violates the Fourth Amendment. This property-based approach focuses on whether the government physically intruded on a person's property or effects, rather than assessing subjective privacy expectations.
The distinction carries real implications for digital surveillance. Under Katz, courts have struggled with cases involving cell phone location data, email metadata, and online activity. Police often argue citizens have diminished privacy expectations in such information. The property-rights framework would protect against intrusions regardless of whether individuals expect privacy, shifting the burden to the government to justify any physical or digital trespass.
Gorsuch's proposal addresses a genuine doctrinal problem. The reasonable expectation standard has allowed courts to uphold surveillance practices simply because those practices became widespread. Once enough people accept monitoring, courts deem privacy expectations unreasonable, creating a downward spiral of protections.
Conservative Justice Gorsuch and liberal Justice Elena Kagan have found common ground on surveillance issues, suggesting