The Fourth Amendment: It Has Got to be About More than Privacy


So cogently argues Reason Contributing Editor Julian Sanchez over at Cato's blog. The heart of the why:

under the modern understanding of the Fourth Amendment, the Constitution is concerned only government actions that violate a "reasonable expectation of privacy," which courts have generally understood as limited to the exposure of what was previously secret. When we entrust sensitive records to third parties—be they banks, Internet Service Providers, or other members of our churches or political organizations—we "assume the risk" that they will reveal the information to the government, according to the courts' logic, and so waive our expectation of privacy.

….Yet a growing number of investigative techniques—from GPS location tracking to DNA analysis—allow the government to conduct an intuitively troubling degree of monitoring, potentially on a vast scale, by targeting information that is at least in some sense "public."….

…the root of the trouble with current Fourth Amendment doctrine is the very idea that the prohibition on "unreasonable searches" must be viewed primarily through the lens of privacy. If we consider public surveillance camera networks, or some recent cases involving "dragnet" location tracking by law enforcement, I think we find that whatever intuitive unease we feel about the methods employed has less to do with a sense that the individual "right to privacy" of any particular person has been violated than with concerns about the government monitoring the citizenry as a whole in these ways…..

An alternative approach…is offered by Yale's Jed Rubenfeld in his article "The End of Privacy," which I wrote about last year. Rubenfeld's Big Idea is that we have ignored the crucial role of "security" in the Fourth Amendment. We're now accustomed to arguments over the "tradeoff" between the competing values of "security" and the "privacy" protected by the Fourth Amendment, but by its own terms, the Fourth Amendment stipulates that "the right of the people to be secure…against unreasonable searches and seizures, shall not be violated." We tend to read this, in effect, as simply saying that the right against unreasonable searches and seizures shall not be violated—so that the words "people" and "secure" don't end up doing any real work. But as Rubenfeld notes, "security" was actually a significant legal concept in the minds of the Framers—something free people enjoyed by contrast with the insecurity generated by arbitrary and discretionary government power. ….

To think of the Fourth Amendment this way—as not exclusively about privacy, but about "the right of the people to be secure"—is necessarily to take a more architectural view of its protections. But Rubenfeld offers something closer to an applicable test: Rather than asking whether an individual reasonable expectation of privacy has been violated, we ask whether people would remain secure in their liberties if a particular search method were pervasive. If it would not, we ask what restrictions—such as requiring a probable cause warrant or "specific and articulable facts"—would sufficiently narrow the method's application so as to leave reasonable citizens secure…..

On the currently dominant view, then, the government violates privacy (and the Fourth Amendment) just in case it performs actions that would be privacy violations if conducted by anyone. Yet the Framers had good reason to be particularly concerned with the social implications of government information gathering. Those concerns had less to do with "privacy" as such than with the structural balance between personal autonomy and state control…

Sanchez thought at length about the evolving meaning of the Fourth Amendment in the face of techological change for Reason magazine in this great January 2007 feature.


NEXT: Paradox of the Day

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  1. I like this approach; it crystallizes my unease/contempt for the medical privacy regime that I labor under that controls access by private actors to medical information, but has no real controls on state access to this information. Which always struck me as back-asswards.

  2. Nobody really gives a shit about privacy anymore.

    1. Then why do I need a tranquilizer to get through the effing TSA gauntlet to get on a plane?

      1. We know what you look like naked.

        We know who’s hot and who’s not.

  3. Clear thought on this matter will require careful semantic analysis. “Privacy” is not the same as “annonymity”. Privacy is what we have when the door is locked, annonymity is what we are supposed to have when moving around in a public space in the absence of any specific warrantable act. Both are covered by the 4th Amendment!

    1. I seriously doubt anyone had anonymity in the typical American town when the Fourth Amendment was ratified, or for 150 years thereafter.

      But the relevant fact is that the amendment says nothing about anonymity or privacy or anything that remotely relates to them.

    2. How in the world are you anonymous when you’re “moving around in a public space”? Do you keep a set of elaborate disguises in your car? Employ snipers to kill anyone who has seen you more than once?

  4. The Fourth Amendment is about search and seizure, not privacy or whatever the fuck Sanchez is on about.

    If the government physically attaches a GPS device or a hidden camera or microphone to your property or person without your consent, they have in effect committed a seizure of your property and must justify that action under 4th amendment rules.

    But if they place a camera on public property in a public space that you happen to walk through? Hell no, the 4th amendment has nothing to do with that. You’d have to be pretty damn thick to say otherwise, but this is CATO we’re talking about.

    1. Because Fourth Amendment analysis of what constitutes a “search” includes a determination of what a citizen’s “reasonable expectation of privacy” is, where a “reasonable expectation” is defined – loosely – as an expectation which society regards as reasonable. If there is no REOP, there is no search, and therefore, the protections developed under Fourth Amendment doctrine do not apply. Which is the heart of the matter of what he is probably getting at – shifting the original emphasis as to what constitutes a search away from privacy concerns and towards one of secur[ity]concerns. People should be “secure from all unreasonable searches,” according to the Fourth.

      I’m imagining he’s saying this because our current standard of privacy is shifting dramtically towards transparency and honesty, and as our concept of what is private shrinks, judges will assume fewer things are reasonably expected by society writ large.

      I’ll have to read his article, but I believe that’s generally the way the doctrine has developed. Lawrence Kaplan has written about Victorian morality and privacy, too, and it’s worth checking out.

  5. Lawrence Friedman, I mean. Must have New Republic in my head.

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