Orin Kerr writes:
During the recent oral argument in United States v. Wurie, the pending cell phone search case, Justice Alito asked an important question about the nature of the “reasonable expectation of privacy” test:
In determining whether the examination of information on a cell phone . . . constitutes a search, what do you think we we are doing? . .. Are we answering an empirical question, what is the reasonable expectation of privacy of a of a person in 2014 who has a cell phone on his or her person? Or are we legislating what we think is a good privacy rule?
I once wrote an article on this question, so I thought I would try to answer Justice Alito.
Read more on WaPo The Volokh Conspiracy.