Professor Peter P. Swire has posted a forthcoming article entitled "Katz is Dead. Long Live Katz." From the abstract:
United States v. Katz is the king of Supreme Court surveillance cases, famous for announcing the "reasonable expectation of privacy" test that is designed to protect personal privacy and limit intrusive searches. This essay comments on a forthcoming article by Professor Orin Kerr. . . . In this essay, I show how Professor Kerr actually understates the demise of Katz.
Professor Kerr has correctly shown how the traditional property approach has persisted where it helps the government, such as by finding that many kinds of surveillance are not "searches" under the Fourth Amendment. This essay adds the insight that the property regime has actually been abandoned in other respects since 1967, in ways that have dramatically aided government surveillance. The 1967 abolition of the "mere evidence" rule has greatly expanded the government's ability to gain access to the private papers and other information of individuals.
Examination of the case law under the "mere evidence" rule and of new developments in telephone technology leads to a second insight. Changing technology means that many telephone calls are likely to be subject to routine recording in the near future. Because the Supreme Court has been so supportive of government access to stored records, Katz may soon be dead on its own facts.