The New Data Marketplace: Protecting Personal Data, Electronic Communications, and Individual Privacy in the Age of Mass Surveillance through a Return to a Property-Based Approach to the Fourth Amendment

The Supreme Court\u27s Fourth Amendment jurisprudence is often critiqued, particularly the Court\u27s refusal to acknowledge the distinction between secrecy, limited disclosure, and public disclosure. The Snowden leaks only fueled the fervor. With the revelations about the National Security Agency\u27s PRISM, XKeyscore, and similar mass surveillance programs came renewed concern and discussion about the legal and regulatory framework protecting Americans\u27 privacy. Privacy is en vogue. The critiques of Katz v. United States and celebrations of Justice Sotomayor\u27s concurrence in United States v. Jones are well-worn. As an alternative, this Note proposes vesting property rights in personal data and electronic communications to facilitate their protection under the Fourth Amendment. In making this proposal, this Note suggests that the Court should return to a trespass theory of the Fourth Amendment because a trespass theory provides better privacy protection. With a functioning Fourth Amendment jurisprudence rooted in trespass, the public would be protected regardless of the constitutionality of the Foreign Intelligence Surveillance Act and the Electronic Communications Privacy Act or of the National Security Agency\u27s decision to simply ignore these statutes. The Fourth Amendment functions as the ultimate backstop. Vesting property rights in personal data and electronic communications would provide the Court with a concrete legal foundation for the Court to apply its trespass theory of the Fourth Amendment, but ultimately, the Court should and can easily apply the trespass theory to such intangibles without these rights. The Court should work to define the curtilage of the individual in the digital world