Stewart Baker writes:
Earlier, I promised a post that would make the positive case for the third-party doctrine and Smith v. Maryland.
The case against it seems pretty obvious. Privacy advocates are glad to tell us that the pace of technological change requires that we expand fourth amendment protections. “We’re putting our entire lives on line,” they say. “The government’s ability to collect and analyze data is growing. Only by expanding the fourth amendment can we even the balance that protects our privacy.”Or more colloquially, “Some new technologies are just plain creepy, especially in the hands of the government, and we want the fourth amendment to save us from them.”
The problem with that argument is that definitions of “creepy” change pretty fast.
Read more on WaPo The Volokh Conspiracy.