The ‘reasonable expectation’ test and technology.

You haven't established that this is a Constitutional standard, only that Justice Harlan in a concurring opinion said that's what the cases added up to. That's quite a difference to cover without mentioning it.

It's not clear to me why these are surprising conclusions for you. You might have quoted from Katz the Court's actual statement that "the Fourth Amendment protects people, not places," with the corollary that something exposed to the public from a man's home or office is not "private," which covers both the radio broadcast telephone call and the open wi-fi network.

Under this standard, users are responsible for discovering and countering the potential technological security weaknesses of their communication technology.

Not necessarily. The difference between open broadcasting and encrypted broadcasting with weak encryption, or broadcasting on frequencies that people are prohibited by statute from scanning might well be different. Now you are criticizing something somebody said once by claiming bad consequences you think it could lead to if not limited. This is a legitimate form of argument, but you need to be careful not to overdo it.

Is the same true of someone who uses WEP encryption on their wireless router instead of WPA? This analysis seems unfaithful to the ‘reasonable expectations’ interpretation of the Fourth Amendment. Removing the cord from a home phone changes the user’s expectation of privacy as much as using a phone booth instead of a home phone does – not at all.

I don't know how you concluded that. I can tell the difference between sending my words down a wire that you have to physically tap and using a radio device my neighbors can overhear. Is your standard of constitutional protection determined by the views of the most ignorant or careless citizens? Is that what you believe the Court held in Katz, or even what Justice Harlan said in the opinion that isn't what the Court said?

Here, the ‘reasonable expectation’ test has been applied to the susceptibilities of new technology and not to social or individual expectations based on the interaction itself, producing a standard that consistently disadvantages the user.

I'm not sure whether it disadvantages the user or not. That depends on whether you think the user is advantaged by being encouraged to overlook the privacy-defeating consequences in the real world (not in the world of constitutional mumbo jumbo) if he chooses to use unencrypted wireless voice communications in the 21st century.

As opposed to what other form of Fourth Amendment doctrine that applies the warrant requirement to documents or other evidence in the hands of unprivileged third parties?

What? This doesn't make sense as it stands. Could you explain how the reach of the warrant requirement has to do with asking questions about other people's sex lives? When has it ever required a warrant to ask people questions about other people?

Maybe. That depends on what the Fourth Amendment is about, as Justice Black says in dissent in Katz, a position you may well disagree with but haven't actually either said anything about or provided a good argument against.

I understand the conclusion, which I agree with, and I also understand the threat posed by circularity in limiting the scope of a right by "reasonable expectations" defined by the actual rulings of courts, leading to a Humpty-Dumpty form of constitutional decisionmaking, in which words mean only what the courts say they mean. I talked about this issue in class a good deal, the tedious recordings show. But I don't understand the assertion her that some particular words spoken in concurrence in Katz either changed the law or created the difficulty. Harlan said in Katz, in an attempt to deal straightforwardly with the "placiness" of the Fourth Amendment arguments adopted by both the government and the defendant in that case—the view that the Court is also rejecting, that the case turns on whether a phone booth is a "constitutionally protected space"—that the cases add up to a principle that warrants are required where people have both an actual subjective expectation of privacy and that this expectation is one that society (not the government) considers objectively reasonable.

Notwithstanding all the ire you direct at it, this has to be right. That which is not intended to be kept private isn't private, which is why consent is an adequate substitute for a warrant, and why the rule has always been that the policeman may look in every room in the house once the street door is passed. Equally, however, individual expectation cannot possibly be the sole determinant, unless warrants are to be required for all searches. So Harlan is offering no more than an obvious proposition, once one grants the premise (on which you and I also agree) that the warrant requirement cannot possibly reduce to a list of "protected" places, all other places being searchable without warrant always for any reason because not protected, because made of glass (as the government said about the telephone booth in Katz) of for some other really important reason like that.

On the other hand, if the principle so stated comes to be used to mean that once a court has ruled a search can constitutionally be conducted without warrant, there's no reasonable expectation of privacy and a warrant is never needed again in analogous circumstances, what was originally appropriate has become a tool of oppression. I agree once again that this is a concern, and I spoke of it in class, but it seems to me that your illustrations are not necessarily good ones. They seem to depend (and your commentary seems indeed to imply) on the primacy of subjective expectations. This converts Harlan's point, that anything which is not subjectively considered private isn't private, into the logically quite different proposition that anything widely considered private should be presumed the subject of a reasonable expectation.

This goes further than necessary, and to my eye it goes further than the constitutional tradition can possibly be stretched. Edward rightly says that you would best test your idea by the articulation of your preferable approach.