Title

Conversational Standing: A New Approach to an Old Privacy Problem

Abstract

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that it does not necessarily encompass a shared expectation of privacy in a conversation. This Article argues that all invited participants to a conversation should have standing to challenge unreasonable government intrusion on that conversation under the Fourth Amendment. The new approach would validate a principle that has existed since the Fourth Amendment was enacted but that the judiciary has skirted. Moreover, the privacy rights in the conversations should not depend on the means of transmission, particularly during this time of growth in communication technologies. The Article examines the history of Fourth Amendment jurisprudence and outlines the details of “conversational standing” both in theory and practice. It demonstrates that the approach would not represent a major doctrinal shift, as well as the urgency of recognizing the concept in order to create a manageable standard in an increasingly complex field.

Disciplines

Civil Rights and Discrimination | Communications Law | Constitutional Law | Criminal Law | Criminal Procedure | Evidence | Law and Society | Public Law and Legal Theory

Date of this Version

September 2006