Pedrick Lecture explores privacy and the Fourth Amendment

In considering privacy, the courts should focus more on types of information and less on where that information is located, Erwin Chemerinsky told a crowd of nearly 300 faculty members, students and staff this week at the Sandra Day O’Connor College of Law.

Chemerinsky, founding dean of the University of California, Irvine School of Law, shared his vision of reasonable expectation of privacy in his speech, “Rethinking Privacy and the Fourth Amendment,” delivered on Monday, Feb. 18, in the Great Hall.

According to Chemerinsky, the U.S. Supreme Court’s approach to privacy has not been ideal. He added that certain notable court decisions have confused the definition of privacy with deceptive wording.

“There is a need for a new structure to suit new technology,” Chemerinsky said, regarding the Fourth Amendment.

He referred to three different concepts in the right to privacy: freedom from intrusion, control over information and autonomy with regard to personal information.

The problem, he said, is that intrusion laws have been the major focus of courts, while laws regarding information control and autonomy with personal choices have not developed over the years.

Chemerinsky said his speech was inspired by United States v. Jones, a 2012 Supreme Court case that involved the FBI’s installation and prolonged use of a global positioning system tracking device without a warrant. 

That case showed that the point at which violation of privacy occurs is not the most relevant point, Chemerinsky said, and that the better question would be: When should people be allowed to keep certain information from the government?

“As we develop this theory of autonomy, it could be far preferable to theories of intrusion,” Chemerinsky said.

According to Chemerinsky, the physical location of information is not the key to proving intrusion, because modern technology permits the gathering of information from remote locations.

The government should have to prove a heightened need for certain information such as diaries, private conversations and records of intimate activity, Chemerinsky said.

“The right to privacy has to concern the information itself, not the location of the information,” he said.

The Willard H. Pedrick Lecture was established in 1997 by the Pedrick family in memory of the founding dean of the College of Law. The annual lecture brings to the law school outstanding legal scholars, jurists or practitioners to enrich the intellectual life of the College and the community.