Eight nails into Katz's coffin.

• Author: Etzioni, Amitai
• Position: Untenable sociological and psychological assumptions in Katz v. United States' reasonable expectations of privacy ruling

ABSTRACT

From a social science viewpoint, that the United States courts keep drawing on Katz v. United States (1) in their rulings about whether or not privacy has been violated is difficult to comprehend. This legal case is clearly based on untenable sociological and psychological assumptions. Moreover, many fine legal scholars have laid out additional strong reasons that establish beyond a reasonable doubt that it is unreasonable to draw on "the reasonable expectations of privacy" as a legal concept. Continuing to draw on this concept, especially in the cyber age, undermines the legitimacy of the courts and hence of the law. This Article reviews these arguments in order to further nail down the lid on Katz's coffin so that this case--and the privacy doctrine that draws on it--will be allowed to rest in peace.

CONTENTS I. KATZ IS TAUTOLOGICAL II. KATZ IS SUBJECT TO INSTITUTIONAL INFLUENCE III. SURVEYS TO THE RESCUE? IV. EXPECTATION OR RIGHT? V. TWO PRONGS OFFER LESS PROTECTION THAN ONE VI. KATZ IS CONFRONTED BY THE CYBER AGE VII. KATZ IS UNDERCUT BY THE THIRD PARTY DOCTRINE VIII. KATZ STAYS HOME I. KATZ IS TAUTOLOGICAL

The Fourth Amendment "reasonable expectation of privacy" standard is tautological and circular. Both the individual and the societal expectations of privacy depend on judicial rulings--while judges, in turn, use these expectations as the basis for their rulings. Mr. Katz had no reason to assume a conversation he conducted in a public phone booth would be considered private or not--until the court ruled that he had such an expectation. (2) In other words, when the court holds that it heeds the vox populi, it actually follows the echo of its own voice. Several leading legal scholars find Katz's tautological nature highly problematic. Richard Posner, for example, notes that "it is circular to say that there is no invasion of privacy unless the individual whose privacy is invaded had a reasonable expectation of privacy; whether he will or will not have such an expectation will depend on what the legal rule is." (3) Richard A. Epstein maintains this:

It is all too easy to say that one is entitled to privacy because one has the expectation of getting it. But the focus on the subjective expectations of one party to a transaction does not explain or justify any legal rule, given the evident danger of circularity in reasoning. (4) Anthony G. Amsterdam points out that the "actual, subjective expectation of privacy ... can neither add to, nor can its absence detract from, an individual's claim to fourth amendment protection." (5) As Professor Amesterdam notes, "the government could diminish each person's subjective expectation of privacy merely by announcing half-hourly on television that ... we were all forthwith being placed under comprehensive electronic surveillance." (6)

Jed Rubenfeld adds wisely that if expectations of privacy are "tied to what a citizen ought to know about the [law], Fourth Amendment law becomes a self-validating logical circle in which ... any judicial decision will vindicate reasonable expectations of privacy (because the judicial decision will itself warrant the expectations or lack of expectations it announces)." (7) By this logic, he concludes, a totalitarian society with government informants in every workplace and household would satisfy the current interpretation of the Fourth Amendment. (8)

Richard Seamon extends this criticism, arguing that a "reasonable expectations" test that concludes certain government privacy intrusions do not count as searches "for Fourth Amendment purposes" is "not just circular" but causes a "downward spiral" in which restrictions on searches and seizures are reduced over time by virtue of the Court's semantics, thereby undermining the "purpose of the Fourth Amendment's guarantee against unreasonable searches." (9) According to Seamon, the reasoning used by the Court in Kyllo v. United States (10) demonstrates that the justices are aware of and struggling to deal with this dilemma. (11) The majority admitted that "[t]he Katz test--whether the individual has an expectation of privacy that society is prepared to recognize as reasonable--has often been criticized as circular, and hence subjective and unpredictable." (12)

It is difficult to comprehend why the well-established observation that Katz is tautological is not itself sufficient to lay Katz to rest. Nevertheless, this Article provides several other reasons for ending the Katz standard.

2. KATZ IS SUBJECT TO INSTITUTIONAL INFLUENCE

   The reasonable expectation of privacy standard is not only highly malleable by the courts but also is subject to influence by various institutions. Statements made by elected officials, especially the President; laws enacted by Congress; and normative positions developed by religious authorities and public intellectuals all affect what people consider private or an open book.

   Along these lines, Shaun Spencer points out that the "expectation-driven conception of privacy" facilitates the erosion of privacy overall by "large institutional actors." (13) That is because powerful institutions can influence the social practices that affect the expectations of privacy "by changing their own conduct or practices, by changing or designing technology to affect privacy, or by implementing laws that affect society's expectation of privacy." (14) When employers monitor their employees' computer use, for example, they "diminish the expectation of privacy in the workplace," and when "merchants routinely sell consumers' personal data, they diminish the expectation of privacy in one's transactional information." (15)

   Jed Rubenfeld shows that the reasonable expectation of privacy test would allow a simple government announcement that "all telephone calls will henceforth be monitored" to deprive people of their "reasonable expectations of privacy in such calls," retroactively justifying the decree. (16) Put simply by Erwin Chemerinsky, the government "seemingly can deny privacy just by letting people know in advance not to expect any." (17) Richard Julie adds importantly that the ability of legislation and regulation to affect the scope of the Fourth Amendment in this way violates "the core principle of constitutional law, that the legislature may not alter the Constitution by an ordinary statute." (18)

   Thus, the public's "reasonable expectations" may be altered by any number of factors. The fact that the vox populi is affected not only by the courts but also by myriad other institutions hardly makes it a more reliable, trustworthy or independent criterion for determining a reasonable expectation of privacy.

3. SURVEYS TO THE RESCUE?

   Assuming judges try to live up to the standard they have set and seek to figure out what reasonable people consider private beyond looking into their own innards, to whom should they turn? There are more than three hundred million Americans. Even if one excludes minors and others whose opinion, for one reason or another, the law excludes, a very hefty number remains. There is no reason, and even less evidence, to hold that they all will have the same expectations.

   Some have suggested that using opinion surveys could make the reasonable expectation of privacy test less circular and subjective by actually finding out what people believe. (19) Christopher Slobogin and Joseph Schumacher, for example, have suggested that the Supreme Court should factor empirical sources such as opinion surveys into the Katz test. (20) Henry Fradella et al. likewise hold that survey data would provide "a far richer and more accurate" basis for determining whether an expectation of privacy is "objectively reasonable." (21)

   Actually, social scientists tend to agree that such surveys may not provide a reliable and appropriate tool on which the courts can rely. Survey results vary depending on (a) who is surveyed, (b) the ways the questions are worded, (c) the sequence in which the questions are asked, (d) the context in which they are asked (e.g., at home versus at work), and (e) the attributes of those who ask the questions. Even when the same question is asked of the same people by the same people twice, rather different answers can follow. (22) These inherent problems are magnified when one seeks opinions about complicated, abstract issues like "privacy" and "surveillance." (23)

   People tend to give answers they believe are expected of them, especially regarding issues that are politically or ideologically divisive. Respondents tend to exaggerate their income, popularity, happiness, and political engagement. (24) Merely changing the phrasing of a question yields rather different results. A 2003 poll, for example, found that a strong majority (68%) of Americans favored invading Iraq, but this number fell to a minority (43%) if the possibility of U.S. military casualties was mentioned in the question. (25) Along the same lines, a medical study found that patients were almost twice as likely to reject surgery when the predicted outcome was phrased in terms of "mortality rate" rather than "survival rate." (26) These issues present formidable obstacles to determining what the American people actually expect. (27) Although social scientists have developed ways to mitigate these issues, (28) the technological transition from landlines to cell phones and e-mail, coupled with the declining response rate to polls, has made accurate polling increasingly difficult. (29)

   Particularly problematic is defining which...