SMU Law Review


This Comment examines, explains, and attempts to reconcile the federal judiciary’s implicit reasoning behind the lax protection of metadata in years past, specifically through the lens of the Rule of Capture. With the goal of explaining the historical hesitance courts have shown when protecting metadata, this Comment illustrates why this hesitance is actually motivated by reasoned restraint rather than a mere refusal to protect. In fact, through the lens of the Rule of Capture, metadata tracks the characteristics of resources that have traditionally counseled for the Rule’s application, specifically that the resource is: (1) emerging in value and (2) difficult to define in terms of location at any given moment or “fugacious” in nature.

It is no coincidence that until recently, technological developers enjoyed a free-for-all in the sense that they could collect, store, and even market as much personal information from their users as their technology could absorb. However, this informational buffet will not last forever. As addressed in the latter portion of this Comment, courts have already begun—and as predicted here, will continue with increasing scrutiny—recognizing these unregulated captures as potential violations of individual privacy. In the near future, this Comment suggests that the Supreme Court will definitively establish and protect individual privacy rights for the information falling outside the definition of traditional data, especially because, given rapid advancements in handheld technology, metadata is often more intimate and revealing.

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