This Comment attributes the inadequacies of the Burger Court's application of Katz to that Court's identification of an interest in privacy with an interest in the secrecy of information. An interest in privacy, however, should more properly be defined as an interest in being left alone. Accordingly, this Comment proposes that a search be defined by reference to the conduct of the government, rather than by reference to the information uncovered by that conduct. Specifically, a search should be defined as conduct that violates a social norm of privacy. Such a definition of search would have several beneficial consequences. Among these are a definition of search more consonant with social privacy values, less subject to judicial manipulation, and less vulnerable to technological change.
Defining a Fourth Amendment Search: A Critique of the Supreme Court's Post-Katz Jurisprudence,
61 Wash. L. Rev.
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