The End of Privacy

March 18, 2009 | | Comments Off on The End of Privacy

[What follows is a summary of a fantastic article (Jay Rubenfeld, The End of Privacy, 61 Stanford L. Rev. 101 (2008)) (PDF link) on reconceptualizing the Fourth Amendment. I hope this summary will make the article more widely accessible, but if you have any interest in the Fourth Amendment, or privacy generally, you should definitely read the article.]

The deep background is this: The Fourth Amendment opens:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…

We started to interpret these words in 1928 in the Olmstead case, which held that the presence or absence of Fourth Amendment protection turned on whether or not a ‘person, house, paper, or possession’ had been the subject of a search or seizures. In this vein, large backyards (‘open fields’) were not protected, and could therefore be searched without any justification, because they were not persons, houses, papers or possessions. This interpretation was completely uprooted in Katz, which held that the Fourth Amendment’s inclusion of “persons” within its ambit of protection protects people, no matter where they are, so long as they have a reasonable expectation of privacy.

Now, Professor Rubenfeld is arguing that Katz, just like Olmstead, is focused on the wrong part of the Amendment.

Professor Rubenfeld first argues that, instead of understanding the Fourth Amendment as an individual right, the history, purpose, and the fact that (unlike other amendments that are phrased so as to explicitly provide protection for individuals) the Fourth Amendment’s protection for “the Pepole” should be understood to establish a collective right.

Imagine for a moment the police systematically violating the Fourth Amendment’s paradigmatic prohibitions. … Say that police with impunity seize thousands of people … on the basis of mere “suspicion.” Imagine too that government agents can and systematically do enter into people’s homes, without warning, if not to arrest them then at least to ransack their papers and effects, all on mere suspicion.

Is there a loss of physical liberty in this imagined society? Of course, individuals imprisoned on suspicion are (obviously) denied their physical liberty. Yet we would miss something fundamental if we identify the constitutional harm here solely in terms of the loss of physical liberty suffered by the individuals imprisoned. We would equally miss something fundamental if we said that the constitutional harm lay in the loss of privacy suffered by those whose homes were searched.

The missing element is the much more pervasive harm reaching beyond the (very substantial) injuries inflicted on the particular individuals searched or seized. As noted above, the Fourth Amendment’s treatment of the people as its rightholder is a distinctive feature of its text completely ignored in modern search and seizure jurisprudence. But the Fourth Amendment’s rightholder is directly connected to the right the amendment actually protects. The fundamental constitutional harm created by systematic suspicion-based arrests and searches is the pervasive and profound insecurity such measures inflict on the people as a whole.

Collective rights are not something we are very familiar with, but an even more fundamental problem arises – if it is a right held by all the People at once, how are we supposed to understand the value it protects? A “reasonable expectation of privacy” certainly won’t do.

What is this insecurity?

It is the stifling apprehension and oppression that people would justifiably experience if forced to live their personal lives in fear of appearing “suspicious” in the eyes of the state. The idea here is not fancy or complex. Agree with it or not, it is the Fourth Amendment’s central idea. Freedom requires that people be able to live their personal lives without a pervasive, cringing fear of the state. A fear produced by the justified apprehension that their personal lives are subject at any moment to be violated and indeed taken from them if they become suspicious in the eyes of governmental authorities.

Next, Professor Rubenfeld explains why this understanding of the Fourth Amendment saves us from the well-recognized trap that current Fourth Amendment jurisprudence has to dance around—if the Fourth Amendment only protects criminals we have no use for it, but if it scrupulously avoids protecting criminal activity, it utterly fails to constrain the government.

Paradigmatically, the freedom to defy public norms includes the freedom to criticize those in power, a freedom obviously essential to democracy (Wilkes was targeted, after all, for sedition). But it is not only political dissidence that the Fourth Amendment enables. It protects all the freedoms—indeed the existence—of personal life. But there is one important freedom that falls outside this ambit: the license to break validly enacted criminal laws.

The freedom to defy public norms that a democratic citizenry requires is not a license to ignore democratically enacted laws. The Fourth Amendment is not violated by searches and seizures that make criminals insecure. It is violated by searches and seizures that rob the law-abiding of their security

He then explains why this understanding better justifies an explicit test of generalizability, and therefore better justifies precisely the test of “reasonable suspicion” we currently use under Terry v. Ohio. Judges consider whether the police have justified their intrusion on a person’s freedom by genuinely individualized facts, or whether they are just parroting a set of undifferentiated observation.

Hence, despite what many modern courts say, judges adjudicating searches and seizures under the Fourth Amendment are not engaged in a balancing of the target’s privacy interests against the state’s law enforcement interests. They are asking whether the search-and-seizure power the state has asserted could be generalized without destroying the people’s right of security.

This means that judges must ask what the effect would be on the people’s right of security if the surveillance or detention power the government has asserted were to be … generalized into a regular, routine, widespread practice—implemented on a scale broad enough to become part of people’s common knowledge and everyday life.

Rubenfeld then addresses a possible counterargument. One of the biggest hurdles to this conception of the Fourth Amendment is that the courts’ concept of ‘standing’ (ie. even assuming the government acted illegally only those people whose rights have been violated are allowed to bring suit) is incompatible with collective rights in the sense that Professor Rubenfeld is proposing. For more on the kind of problem Rubenfeld discusses below, see this previous post and the cases it references.

[Current] Fourth Amendment law has created a standing doctrine abnegating the right the Fourth Amendment protects. Under the Sixth Circuit’s ruling, the government could publicly announce that it is engaging in a widespread, systematic, unconstitutional surveillance program, yet a Fourth Amendment challenge to that program would apparently never be justiciable so long as the government never disclosed whom, specifically, it had targeted. The flaw in the court’s reasoning is that it has omitted the people’s right of security.

Professor Rubenfeld sets out a very clear, and highly plausible understanding of the fundamental meaning of the Fourth Amendment. Though I doubt that it will ever be adopted, consider this: when Olmstead was overruled by Katz in 1967, Olmstead had stood for 39 years. If the Court were to completely uproot Katz today and replace it with Rubenfeld’s theory, Katz’ ‘privacy conception’ would have only stood 3 years longer than Olmstead’s. In other words, we might be due (you might notice academics seriously reconsidering some landmark Fourth Amendment protection-limiting decisions these days).

That’s why Rubenfeld’s article is titled “The End of Privacy” – it’s short for ‘The End of Privacy [as the Measure of Fourth Amendment Protection].’

Image courtesy of this hilarious parody in The Onion– “Right To Privacy Not Guaranteed By Constitution, Says Supreme Court Justice Peeking In Bathroom Window”.


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