Taking the “Long View” on the Fourth Amendment: Stored Records and the Sanctity of the Home

Privacy and Security

Article Snapshot

Author(s)

Josh Lerner and Deirdre Mulligan

Source

Stanford Technology Law Review 3, February 2008; 2007 Symposium presentation

Summary

This paper looks at what detailed recordkeeping by electrical utilities means for privacy.

Policy Relevance

Businesses are keeping more and more detailed records about our behavior in our homes, and the privacy of these records should be protected.

Main Points

  • Electric utilities now collect very detailed records about how consumers use their services from hour to hour, to figure out “peak usage” loads.

  • Supreme Court cases show that the Fourth Amendment of the United States Constitution, which requires police to get a warrant before searching private records, rarely protects the privacy of detailed business records.
    • At the time many of these cases were decided, electrical utilities did not keep detailed records of home power use.

  • People have little choice about whether to use electricity, and if business records data is not considered private, we will have little privacy left.

  • In future cases, courts should protect privacy whenever data reveals information that would not be otherwise available without trespassing into someone’s home, whether the data is collected through business records or through surveillance.
     

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