| | |
|
JonPenneySecondPaper 7 - 03 May 2009 - Main.JonPenney
|
| |
| META TOPICPARENT | name="WebPreferences" |
|---|
The Fourth Amendment’s Unwelcome Journey to Canada | | | The irony is breathtaking. Despite Section 8’s text, history, and intent to provide Canadians with broader privacy protections than the Fourth Amendment, this ill-considered constitutional borrowing has led to narrower protections. In other words, Canada has the flimsy “reasonable expectation of privacy” test weakened even further by the fact there are no places – like the home – which have constitutional priority. “Place” in the Fourth-Amendment-meets-Section-8 analysis is simply one factor among many.
Canadian Lessons for American Privacy Strategies | |
<
< | There are a few lessons here. First, amendment may not be either the magic elixir, nor even the most effective means, to cure American constitutional privacy. Many believe-- and it is intuitive-- that the best way to fix the Fourth Amendment is to change it, replacing its textual focus on places with broader language to secure greater privacy. But the Canadian experience shows that if courts retain flawed interpretive methods then newly minted text, history, structure, and purpose may change nothing. Judicial error or resistance to constitutional text and history can be a factor in the U.S. as much as Canada. Second, and also counter-intuitively, specific rather than broad and vague textual language may be preferable. Otherwise, resistant courts might fill the void with nonsense. Third, privacy may be too delicate and important for use foreign jurisprudence for guidance. Legal scholars love citing and debating foreign precedent. While similar legal systems makes comparative law inevitable, a single act of misinformed borrowing can wreak constitutional havoc on privacy norms-- like eclipsing any remaining traces of Fourth Amendment protections (think of Tessling informing future U.S. privacy law decisions). There is a thin line between learning from others' mistakes and learning their mistakes. | >
> | There are a few lessons here. First, amendment may not be either the magic elixir, nor even the most effective means, to cure American constitutional privacy. Many believe-- and it is intuitive-- that the best way to fix the Fourth Amendment is to change it, replacing its textual focus on places with broader language to secure greater privacy. But the Canadian experience shows that if courts retain flawed interpretive methods then newly minted text, history, structure, and purpose may change nothing. Judicial error or resistance to constitutional text and history can be a factor in the U.S. as much as Canada. Second, and also counter-intuitively, specific rather than broad and vague textual language may be preferable. Otherwise, resistant courts might fill the void with nonsense. Third, privacy may be too delicate and important to use foreign jurisprudence as guidance. Legal scholars love citing and debating foreign precedent. While similar legal systems makes comparative law inevitable, a single act of misinformed borrowing can wreak constitutional havoc on privacy norms-- like eclipsing any remaining traces of Fourth Amendment protections (think of Tessling informing future U.S. privacy law decisions). There is a thin line between learning from others' mistakes and learning their mistakes. | | | Are we thus at an impasse? Not necessarily. All this means is that any privacy solution requires promoting a culture of privacy both inside and outside courts. Frederick Schauer has written about America's "First Amendment Culture" which is the country's deep cultural commitment to free speech apparent in broad judicial interpretations of the First Amendment's speech protections. If a culture of privacy existed in Canada - touching judicial culture - a trilogy like Hunter, Plant and Tessling may not be possible; in truth, however, neither Canada, nor the United States, have such a privacy culture. Privacy needs its own constitutional moment. It's high time to get it started. |
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|
| | |