The political Fourth Amendment.

• Author: Crocker, Thomas P.

Table of Contents INTRODUCTION I. TWO VISIONS OF FOURTH AMENDMENT PURPOSE: PROTECTING PRIVACY AND REGULATING POLICE A. Protecting Privacy B. Regulating Police 1. From Belton to Gant 2. The New Exclusion in Herring C. A Political Purpose? II. FOURTH AMENDMENT BEGINNINGS AND SEDITIOUS LIBEL A. The Child Independence B. A Division of Constitutional Labor III. THE RIGHT OF THE PEOPLE A. The People as Jurors B. The Fourth Amendment Revised IV. SECURING LIBERTY AS A FOURTH AMENDMENT VALUE CONCLUSION INTRODUCTION

We live in a world of increased government surveillance of both public and private spheres of our lives, despite past warnings of possible future harm. Writing in dissent from the Supreme Court's confidential informant cases, Justice Douglas warned that the "privacy and dignity of our citizens is being whittled away by sometimes imperceptible steps." (1) As a consequence of technological developments, we risk creating "a society in which government may intrude into the secret regions of man's life at will." (2) As the sphere of life held private from government surveillance shrinks, Justice Douglas observed that a time may come "when the most confidential and intimate conversations are always open to eager, prying ears. When that time comes, privacy, and with it liberty, will be gone." (3)

Impassioned dissents provide good prose, but may not always provide clarity of thought. Indeed, sounding the totalitarian bugle in a post-Cold War era may ring a bit disharmonious. This era has produced vast new technologies enabling many new means of intimate conversation among friends. These technological tools are familiar to us all. E-mail, text messaging, electronic social networking, and wireless mobile communication devices allow us many different ways to keep track of our friends and associates. The problem that provides continuing relevance to Justice Douglas's dissent is that under current Fourth Amendment doctrine, all of these tools are constitutionally available to "eager, prying ears," (4) because none of them involves attempts by the speaker to keep information private--that is, secret.

Under the "third-party" doctrine, a person loses Fourth Amendment protections over anything she knowingly exposes to another person. (5) The Supreme Court "consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." (6) As Chief Justice Roberts articulated the doctrine, "[i]f an individual shares information, papers, or places with another, he assumes the risk that the other person will in turn share access to that information or those papers or places with the government." (7) This doctrine extends to features of everyday life, such as the numbers one dials on the phone, (8) the transactions one conducts with a bank, (9) or the location one conveys to onlookers when in public. (10) Because under the third-party doctrine the Fourth Amendment protects only the privacy of information or activities withheld from others, the Court construes much of everyday life as no longer undisclosed, and therefore fully available to government officials. Although scholars have widely criticized this doctrine, (11) it readily follows from the Court's narrow construction of privacy as what remains undisclosed. In a robust socially networked world, Fourth Amendment privacy by itself may offer little constitutional guidance or protection. (12)

We face a constitutional dilemma. Either we accept the existing limited, and increasingly irrelevant, Fourth Amendment protections for privacy, or we must seek to reinvigorate the Fourth Amendment by seeing how it functions within a more comprehensive constitutional framework. (13) This Article argues that the Fourth Amendment makes a distinctive contribution to a broader constitutional framework aimed at protecting political liberty.

Justice Douglas's dissent is noteworthy because he recognizes the interrelation between privacy, dignity, and liberty. So far, the primary melody of Fourth Amendment protections has sounded in privacy alone, with dignity and liberty interests playing only an occasional background note. (14) Yet liberty fits more comfortably within a Constitution whose purpose is to "secure the Blessings of Liberty" for "We the People." (15) Liberty is realized in public as well as private, collectively as well as individually, creating the space for "the People" to exercise their sovereign power. Moreover, the Fourth Amendment looks very different when read alongside the First, Second, and Ninth Amendments, all of which protect "right[s] of the people," than when it is read among the criminal process provisions of the Fifth and Sixth Amendments, which focus on rights of "the accused" or "a person." Read in light of the Amendments protecting political liberty, we can more easily see the Fourth Amendment's role within a scheme of ordered liberty designed for political purposes. (16) The ability to see the Fourth Amendment in this light is obscured by prevailing doctrine.

Current Fourth Amendment jurisprudence governing searches contains two contrasting narratives, one focused on regulating police and the other on protecting privacy. (17) Sometimes the two narratives coordinate; regulation of police can be privacy protecting. At other times the narratives diverge. Two recent Supreme Court decisions illustrate the divergence. In Arizona v. Gant, a five-to-four majority of the Supreme Court placed limitations on the search incident to an arrest near an automobile, citing the imperative of protecting privacy interests. (18) A vigorous dissent, citing the need to provide bright-line rules to guide police practice, failed to mention the value of privacy at all. (19) In Herring v. United States, a different five-to-four majority held that the exclusionary rule did not apply to searches based on negligent records maintained by state officials, emphasizing the minimal deterrent effect for police misconduct, while also failing to consider relevant privacy interests. (20) Writing in dissent, Justice Ginsburg altered the usual Fourth Amendment narrative, focusing not on the privacy implications of the search and seizure, but on the liberty interests at stake. (21) Here, Justice Douglas's equating of Fourth Amendment liberty with privacy interests is recast in a new jurisprudential light. By reading the Fourth Amendment to protect liberty, Justice Ginsburg opens up the possibility of protecting the public and political lives of individuals who have chosen not to remain secreted away from others. In so doing, protections for political liberty may sweep more broadly than the Court's current protections for privacy. Constitutional discourse that moves beyond the twin narratives of regulating police and protecting privacy allows us to see how the Fourth Amendment protects popular sovereignty and public association, in addition to private life.

Put dramatically, we misread the Fourth Amendment when we read it to protect no more than a "reasonable expectation of privacy," as the Court has done since Katz v. United States. (22) Privacy is no doubt an important constitutional value, protected not only by the Fourth Amendment, but also by the due process clauses of the Fifth and Fourteenth Amendments. (23) But privacy exclusiveness ignores a "more majestic conception" (24) of the Fourth Amendment that protects a political "right of the people" to organize community life free from pervasive government surveillance and interference. Similar problems arise when scholars and courts view the Fourth Amendment primarily as a special provision of constitutional criminal procedure designed to regulate police practice. (25) As Akhil Amar argues, by reading the Fourth Amendment as part of a special group of criminal procedure provisions, "we miss ... how the Fourth Amendment connects up with the rest of the Constitution." (26) Yet despite the severity of his criticism of other scholars, Amar persists in reading the Fourth Amendment in the context of constitutional criminal procedure. (27) He focuses on its reasonableness requirement to govern police practice, contests reliance on the exclusionary rule in criminal proceedings, and finds a remedy for unreasonable searches and seizures in the right to civil juries protected by the Seventh Amendment. (28) These considerations all fit comfortably within the first principles of criminal procedure. If this is as far as the Amendment "connects up with the rest of the Constitution," then we fail to see how the Fourth Amendment furthers core constitutional principles of political liberty sharing a textual mandate to protect a "right of the people."

"We the People" sought both active participation in political life and negative constraints on government interference. Benjamin Constant emphasized this difference between the "liberty of the ancients" and the "liberty of the moderns," separating collective political participation from individual civil freedom. (29) Isaiah Berlin makes a related distinction between positive and negative theories of liberty, emphasizing the potential for conflict between freedom from constraint and freedom of self-fulfillment. (30) Although these two forms of liberty can pull in different directions, political liberty requires both freedom from unwarranted government intrusion into spheres of our lives, as well as public and political interaction among "the People." (31) The Bill of Rights reflects both these aspects of liberty. The Fifth Amendment privilege against self-incrimination protects a right to keep information to oneself, while the First Amendment right of assembly protects shared public political activity. (32) Above all, political liberty requires a particular kind of security in the dignity of one's person and the integrity of one's interactions with others. (33) Privacy, as that which is withheld from others, sounds primarily within the narrow theme of...