OrinKerr.com

I’m Looking For A Word

I’ve been working on my draft article Four Models of Fourth Amendment Protection today, and I need your help finding the right word for one of the models.

First, a little bit of background. Part I of the article argues that there are four basic types of arguments that are used in debates of the scope of a “reasonable expectation of privacy.” The idea is that there are four relatively distinct types of claims that are recognized within Fourth Amendment law as legitimate types of arguments on when an expectation of privacy is reasonable. I’m trying to get the four basic arguments down as completely as I can, and for each model I’m trying to find a good descriptive label for it. (The labels are needed to make it much easier to refer to and distinguish the basic arguments.)

Here’s where I need your help. I’m trying to come up with a good label for the line of Fourth Amendment argument that looks at the likelihood that information will be exposed to others. You see this argument often in Fourth Amendment debates. It runs like this: If the chances are pretty low that information might be exposed to others, given prevailing social practices, you might say that this makes an expectation of privacy in that information “reasonable.” It’s reasonable in the sense that a person of good judgment would expect it to remain private. Conversely, if it’s pretty obvious that the information will be exposed to others, you might say that this makes the expectation of privacy unreasonable. I think of this as a sort of actuarial model: it looks at whether someone with an accurate sense of prevailing social practices would think it very likely or less likely that the item would remain private. In other words, it involves a descriptive assessment of the likelihood that something will be exposed to others or the police. The higher the likelihood, the lower the chances of Fourth Amendment protection. (Or at least so the argument goes; sometimes the Supreme Court accepts this line of thinking, and sometimes it doesn’t.)

The question is, what’s the best label for this line of argument? In my initial draft I called it a norms model, on the theory that it was based on prevailing social practices and social norms. But that’s not exactly accurate: the real issue is the likelihood of privacy. Norms can strongly influence that, but they’re not exactly the same. I could call it the actuarial model, but that seems too technical and a little bit dismissive. The chances-that-it-will-stay-hidden model is, um, well, not workable. Any better ideas?

UDPATE: Other ideas I have thought of include the risk assessment model (too easily confused with the assumption of risk rationale in Fourth Amendment law, which is different) and the odds model (too informal).

ANOTHERUPDATE: RIght now I think the winner is the probabilistic model.