For nearly forty-four years, the Supreme Court has adhered to the same test for its Fourth Amendment jurisprudence, first announced in Justice Harlan's concurrence in Katz v. United States. Despite the judiciary's steadfast use of the test since its enunciation, the decisions since Katz have been anything but consistent.
Most recently, this nation's federal courts were confronted with questions about the legitimacy of using GPS tracking devices. In its attempt to resolve the issue, the Supreme Court's decision in United States v. Jones strayed from applying Katz and instead relied on the common-law trespass doctrine.
In an attempt to determine how society views the extent of its own privacy rights in the 21st century, this note uses survey results from more than 300 individuals and concludes that using GPS tracking devices indeed violates reasonable expectations of privacy. More importantly, this note argues that the inconsistencies plaguing federal jurisprudence in this area is not a result of any problem with Katz, but with proxy tests applied by the courts that stray from Justice Harlan's original intention.
Herding Katz: GPS Tracking and Society's Expectations of Privacy in the 21st Century,
40 Hastings Bus L.J. 145
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