§ 6.03 UNITED STATES AND THE "PRIVACY" ANALYSIS

• Jurisdiction: United States

§ 6.03. "Search": Katz v. United States and the "Privacy" Analysis²⁴

[A] An Overview

In Katz v. United States,²⁵ federal officers conducted warrantless surveillance of K's conversations by attaching an electronic listening device to the outside of a telephone booth K used to conduct conversations. In light of the Court's original jurisprudence, the parties pressed their Fourth Amendment claims in terms of whether the telephone booth, like a house, was a "constitutionally protected area," and whether a physical intrusion of it was necessary to raise a Fourth Amendment "search" claim.

The Court rejected this line of analysis. With the advent of modern technology as it existed in the 1960s—and, thus, with the government's capacity electronically to intercept conversations without physical intrusion into any enclosure—the Court arrived at the view that the trespass doctrine constituted "bad physics as well as bad law."²⁶ Consequently, the Court announced "that the 'trespass' doctrine . . . can no longer be regarded as controlling." Instead, the Court created a new test: whether the government surveillance violated the defendant's "reasonable expectation of privacy."

[B] Majority Opinion: In Search of a New Test

Justice Potter Stewart wrote the Court's opinion in Katz. One scholar has described the Stewart opinion as an "efficient dismantler, but neglectful reconstructor."²⁷ That is, Katz seemingly buried the trespass doctrine, but the majority opinion offered no evident test in its place. Although Katz "bestowed a controlling role upon privacy,"²⁸ it rejected "privacy" as a new talisman. In fact, Stewart warned that "the Fourth Amendment cannot be translated into a general constitutional 'right to privacy.' That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all."

Justice Stewart stated that "the Fourth Amendment protects people, not places." Although this statement is surely true—the Amendment begins, after all, with the phrase "[t]he right of the people" — it is less helpful than it might seem because, as Justice Harlan wisely observed in his concurring opinion, the ultimate "question . . . is what protection [the Fourth Amendment] affords to those people. Generally, . . . the answer to that question requires reference to a 'place.' "

Although Justice Stewart offered no bright-line definition of a "search," he did state in language that has been cited frequently in post-Katz cases — if there is anything like a "test" in the majority opinion, it is this—that "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection," whereas "what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

In this "knowing public exposure"/"seek to preserve as private" context, Stewart distinguished, in K's situation in the telephone booth, between the uninvited ear (the electronic bug) and intruding eyes. Because the telephone booth was made of glass, K's physical actions were knowingly exposed to the public, but what he sought to exclude when he entered the booth was the uninvited ear. Therefore, by shutting the door on the booth²⁹ and paying the toll, K was "surely entitled to assume that the words he utter[ed] . . . [would] not be broadcast to the world." As a result, "the Government's activities . . . violated the privacy upon which he justifiably relied . . ."

[C] Concurring Opinion: A New "Search" Test

If Justice Stewart's opinion lacked a definition of a Fourth Amendment "search," Justice John Harlan's concurring opinion filled the void. He interpreted the case "to hold only" that a telephone booth, like a home, and unlike an open field, is an area in which "a person has a constitutionally protected 'reasonable expectation of privacy' . . ." Although Justice Harlan asserted that this holding "emerged from prior decisions," it is this language that has survived as the operative definition under Katz of a Fourth Amendment "search."

As Justice Harlan explained, the "reasonable expectation of privacy" standard has a subjective and an objective component. First, the individual must have "exhibited an actual (subjective) expectation of privacy." Second, he must prove³⁰ that the expectation he exhibited is one that "society is prepared to recognize as 'reasonable' " or—to use the Court's variants — "legitimate"³¹ or "justifiable."³²

Police conduct does not constitute a "search" — and, thus, the Fourth Amendment is not triggered—if either prong of the test is lacking. For example, if K in Katz had spoken "in the open" (e.g., on a busy public sidewalk) where he could have been overheard, rather than in the closed telephone booth that shut out the uninvited ears of others,³³ K's subjective expectation of privacy would have been unreasonable under the circumstances. Therefore, K could not have successfully claimed that he was the subject of a Fourth Amendment "search."

Similarly, K would not have had a valid "search" claim if he had realized that the telephone booth was bugged. Thus, although people in general may have a reasonable expectation of privacy in their telephone conversations conducted in private, an individual's subjective realization that his conversations were not private would eviscerate his Fourth Amendment claim.

[D] Analysis and Critique of the Katz Test

[1] Overview

Professor Anthony Amsterdam once observed that Justice Stewart's opinion "was written to resist captivation in any formula."³⁴ The Court seemingly abandoned the prior law because it had become too rigid: thoughtful analysis had given way to formulas and talismans, such as "trespass," which did not take into account technological advances. Therefore, according to Amsterdam, Harlan's "search" test violated the essence of Katz because it substituted one talisman for another.

Justice Harlan came to agree, at least in part, with this criticism. He later acknowledged that his expectations formula, although "an advance over the unsophisticated trespass analysis of the common law," also had its "limitations and can, ultimately, lead to the substitution of words for analysis."³⁵ Based on a survey of post-Katz Supreme Court decisions, especially the Court's treatment of the objective prong of his "search" standard, some critics of Katz would maintain that Harlan's warning about his own test has proved prescient. At a minimum, as another critic of Katz has observed, Harlan's "reasonable expectation of privacy test has led to a contentious jurisprudence that is riddled with inconsistencies and incoherence."³⁶

Potential problems with the "reasonable expectation of privacy" test are set out below.

[2] Should We Have the Subjective Prong?

Many commentators fault Justice Harlan for including a subjective prong in his expectations formula.³⁷ Their thesis is that if the subjective component is taken seriously, the government can eliminate privacy expectations — and, thus, render the Fourth Amendment inapplicable—by the simple act of announcing its intention to conduct Or-wellian surveillance.³⁸ If citizens know that their government is reading their electronic mail,³⁹ listening to their conversations, and generally intruding on their privacy — as increasingly is possible⁴⁰—many people will ultimately possess no subjective expectation of privacy.

Beyond this, non-governmental intrusions potentially undermine our right to be free of governmental intrusions. Modern technology makes it possible—even inexpensive⁴¹ — for private individuals to observe their neighbors from long distances, even at night, or to track their movements electronically, as well as for corporations to discover previously private information about people who use the Internet. As a result, few of us believe that we possess as much privacy today as we did even a decade ago. In light of our lesser subjective expectations of privacy, under Katz, our Fourth Amendment protections from governmental overreaching recede further.⁴²

Justice Harlan ultimately agreed with this criticism of his test. He concluded that the critical focus should be on objective expectations. Privacy analysis, he concluded, should "transcend the search for subjective expectations" because "[o]ur expectations . . . are in large part reflections of laws that translate into rules the customs and values of the past and present."⁴³ The task of the law, he noted, is "to form and project," and not simply to "mirror and reflect."

The Court has acknowledged the risk inhering in the subjective prong. It has stated that if the situation should ever occur that a person's subjective expectations were "conditioned by influences alien to well-recognized Fourth Amendment freedoms," the subjective element "obviously could play no meaningful role."⁴⁴ And in fact, an empirical study of more than 500 Fourth Amendment cases decided in 2012 determined that only 12 percent even applied the subjective prong of the test, and in no case did the subjective prong affect the outcome.⁴⁵ Thus, we may already be at the point at which the subjective prong plays "no meaningful role" in the Fourth Amendment analysis.

[3] The Objective Prong: What Precisely Is the Standard?⁴⁶

Justice Harlan stated in Katz that, in order for the Fourth Amendment to apply, the expectation exhibited by an individual must be one that "society is prepared to recognize as 'reasonable.' " In the majority opinion, Justice Stewart stated that the electronic surveillance in that case violated the privacy upon which K "justifiably" relied in the telephone booth. In stating or applying the objective prong, some post-Katz cases have also used the word "justifiable," and still others have employed the word "legitimate." The Court treats these words interchangeably, and yet a distinction arguably could be drawn between, on the one hand, "reasonable" expectations...