The Lawfare Podcast Lawfare Daily: The Privacy Law That's Supposed To Be Protecting Us Online Turns 40
Apr 3, 2026
Michael Dreeben, legendary Supreme Court advocate who argued landmark Fourth Amendment and ECPA cases, reflects on four decades of electronic privacy law. He traces the law’s origins, key Supreme Court shifts like Katz and Carpenter, and why statutes may better address modern digital gaps. Short takes on rulings from Kyllo to Riley and the push for a modernized Stored Communications Act.
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A Supreme Court Advocate Who Kept A Flip Phone
- Michael Dreeben admits he kept a flip phone until a smartphone case forced him to learn modern devices.
- He bought a smartphone only after a case required it, underscoring practitioners’ slow tech adoption even among top advocates.
Katz To Kyllo Mapped Privacy Into New Technologies
- The Court used Katz to move from physical trespass to privacy expectations, then applied that framework to new tech like thermal imaging.
- In Kyllo the Court held using a non-common-use device to glean interior home details is a search.
The GPS Case That Felt Creepy Even To Prosecutors
- In Jones the government attached a GPS to Antoine Jones' car and tracked him 28 days, which felt 'creepy' even to DOJ staff.
- Dreeben recalls Chief Justice Roberts asking whether GPS could be attached to all justices' cars.