Helen Nissenbaum & Andrew Selbst, Contextual Expectations of Privacy
Comment by: James Grimmelmann
Workshop draft abstract:
The last decade of privacy scholarship is replete with theories of privacy that reject absolute binaries such as secret/not secret or inside/outside, instead favoring approaches that take context into account to varying degrees. Fourth Amendment doctrine has not caught up with theory, however, and courts continue to employ discredited binaries to justify often contradictory conclusions. At the same time, while some of the cases reveal the influence of contextual thinking, courts rarely have included an explicit commitment to context in their opinions. We believe that such a commitment would improve both the internal consistency and individual case outcomes of the Fourth Amendment.
The theory of contextual integrity, which characterizes a right to privacy as the preservation of expected information flows within a given context, offers a framework for injecting context into the conversation. Grounded, as it is, in context-based normative expectations, the theory offers a useful interpretive framework for Fourth Amendment search doctrine. This paper seeks to reexamine the meaning of a “reasonable expectation of privacy” under the theory of contextual integrity, and in doing so accomplish three goals: 1) create a picture of Fourth Amendment doctrine if the Katz test had always been interpreted this way, 2) demonstrate that contextual integrity can draw connections between seemingly disjointed doctrines within the Fourth Amendment, and 3) illustrate the mechanism of applying contextual integrity to a Fourth Amendment search case, with the intent of helping both theorists and practitioners in future cases, particularly those involving technology.