Jed Rubenfeld, in the Stanford Law Review:
This Article is about the Fourth Amendment. It is an attempt to recover that amendment’s core meaning and core principles.
By revitalizing the right to be secure, Fourth Amendment law can vindicate its text, recapture its paradigm cases, and find the anchor it requires to stand firm against executive abuse.
Julian Sanchez, on Rubenfeld's essay:
Rubenfeld's essay is not another catalog of privacy threats, but rather a provocative reexamination of the meaning of the Fourth Amendment—one that manages to be simultaneously radical (in the sense of "going to the root"), novel, and plausible in a way I would not have thought possible so late in the game.
Rubenfeld's big apple-to-the-noggin idea is this: mainstream jurisprudence regards the Fourth Amendment as protecting an individual right to "privacy"—which in the late 20th century came to mean the individual's "reasonable expectation of privacy"—with courts tasked with "balancing" this against the competing value of security. This, the good professor argues, is basically backwards: the Fourth Amendment explicitly protects the "security" of our personal lives. Excavating a neglected 17th and 18th century conception of "security" leads to a new reading that both avoids well-known internal problems with the "reasonable expectation" view and helps us grapple with the thorny privacy challenges posed by new technologies.
This new conception of the 4th amendment is potentially very important - In my view the combined effect of the third-party doctrine, which states that what you tell Google you've told the government, and the notion that machines cannot violate your privacy, will enable the rise of a total surveillance society in which everyone is watched by law enforcement all the time. We are very close to the point where the 4th amendment will be an anachronism - a technicality that has very little impact on everyday life - and a radical reconsideration will be necessary in order to re-establish it.
The End of Privacy