The Digital Person: Technology and Privacy in the Information Age

Today, much of our personal information is finding its way into the hands of third parties. Moreover, given the Court's current conception of privacy under the Fourth Amendment, the architecture that regulates many of the government's information gathering practices is increasingly that of a confusing and gap-riddled statutory regime.

One solution to fill the void is for the Court to reverse Smith v. Maryland and United States v. Miller. Although Fourth Amendment architecture is significantly more protective than that of the statutory regime, the problem of how to regulate government access to third party records is not adequately addressed by Fourth Amendment architecture alone. As discussed earlier, the principal remedy for Fourth Amendment violations is the exclusionary rule, which prevents the government from introducing improperly obtained data during a criminal prosecution. However, many information acquisition abuses often occur in the absence of prosecutions. Therefore, the exclusionary rule alone is not sufficiently protective.

A better architecture to regulate government information gathering from third parties should be constructed. In particular, such an

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