Adopting a Legislative Approach for Data in the Fourth Amendment: Defining Personal Data as An 'Effect'

Abstract

This Article addresses the need to recognize a property-based right in personal data and to limit the amount of personal information that can be lawfully collected about individuals online. The Fourth Amendment, protecting “persons, houses, papers, and effects” from unreasonable searches must be interpreted to ensure privacy for personal data. The evolving nature of data privacy protections and global data privacy standards emphasizes the necessity to develop clear standards and statutes to protect an individual’s interest in their personal data. Statutes such as the E.U.’s GDPR and California’s CCPA, provide a regulatory framework on how to approach data privacy on the federal level. Using a property-based approach to “effects” and personal data can provide a significant resurgence and revolution in protecting individual privacy. Expanding this privacy right through a legislative approach and the ‘mere evidence’ rule will reform the convoluted ‘reasonable expectation of privacy’ framework outlined in Katz v. United States and its progeny.