How willing is "willing" if there are no viable alternatives?
My position is that that should be a central question in discussing what the law should be.
As for a sentiment like this: "You want privacy - use a land line, use snail mail, physically go to the store. "
No on all fronts.
Landline: A third party could be listening in on the other end with the consent of the person you are calling --> no reasonable expectation of privacy. But, some states like MA have a wiretap statute making recording the conversation, at least, illegal without two party consent.
Snail mail: A third party could open your mail. The mailman could open your mail. The machine processing your mail could accidentally tear it, as happens, and someone could read it. Why should there be an expectation of privacy.
Physically going to the store: And you are exposing yourself to public view. When you swipe your card, the store gets your credit card info.
Basically, the current 'reasonable expectation of privacy test' means that you have no privacy unless you lock yourself in a steel box in your basement and never expose yourself to view. Is that really what we want?
Should you be able to request my browsing history simply because Comcast might be able to learn it simply by virtue of the signals between my computer, its modem, and its servers? Should the answer be that I deserve no privacy, even if it is virtually impossible to interact with the modern world without the internet? There are no alternatives.
On top of the notion of what you potentially expose to third parties, there's the troubling problem of technology that lets third parties search you without consent.
Should we simply jettison the concept of privacy if a company develops technology that sees perfectly clearly through clothes and walls? Why sit passive simply because it is the way things happen to be at the moment?
I have a problem with that. I think the test should change.
Maybe servers should be made to wipe email after end-receipt. Maybe the fact that you have to give certain information to a credit card company to obtain a credit card should not mean that you have no expectation of privacy in it, when you need to build a credit history to get anywhere.
The heart of it: It's not really a choice to expose something to potential public view, but when the 'reasonable expectation of privacy' test was born, you still had a real means of choosing to or not to expose certain things to potential view. Today, and much more so in 20 years, you have no choice.
Besides, if the existence of supposed alternatives is enough to end the discussion, we might as well stop talking about anything because...hey... if you don't like something in America, go live somewhere else.
I have an expectation of privacy on a cell phone. I am using a service to have a conversation between two people. It is not like I am standing in a crowded theater shouting back and forth to my firend a few rows away.