LawFare: “Reasonable Search” or “Reasonable Expectation of Privacy:” A Brief Reply to Orin Kerr on the 2nd Circuit’s Decision

LawFare: “Reasonable Search” or “Reasonable Expectation of Privacy:” A Brief Reply to Orin Kerr on the 2nd Circuit’s Decision by Yishai Schwartz:

Thursday’s 2nd Circuit decision striking down 215 ends with a brief, and unresolved, rumination on the impact explicit congressional authorization might have on a 4th Amendment analysis—if and when such an analysis were actually to take place: …

. . .

Kerr is seizing on the 2nd Circuit’s repeated use of the word “reasonable,” and taking the Court to be addressing the “reasonableness” of the a search. I wonder, however, whether he is too quick in making this leap. It seems to me that the 2nd Circuit is making an entirely different point: that in navigating the Katz v. United States and Smith v. Maryland precedents to determine what constitutes a search, “reasonableness” (and therefore Congressional views of reasonableness) matters—because “reasonableness” also factors into the analysis of whether someone has a reasonable expectation of privacy in certain kinds of data.