Foreword to the Sullivan Lecture Essay: Is Privacy on Life Support?

• Author: Mark R. Brown
• Position: Newton D. Baker/Baker and Hostetler Chair of Law, Capital University Law School.
• Pages: 67-675

FOREWORD TO THE SULLIVAN LECTURE ESSAY: IS PRIVACY ON LIFE SUPPORT? MARK R. BROWN * Liberty or licentious. 1 Autonomy versus anarchy. Privacy against security. America has struggled with these quandaries for over two hundred years. Our framers were incensed over British searches and seizures. They particularly disliked quartering troops. Thus, they left us with the Third and Fourth Amendments to the U.S. Constitution. Within the broad contours of these guarantees, the founding generation thought (apparently) that people would enjoy some kind of what Louis Brandeis described one hundred years later as a “right to be let alone.” 2 Shades of this right have been recognized throughout the nation’s history, but it has never been an absolute. Although quartering troops—and presumably FBI agents—is prohibited, searches and seizures have always played a part in American history, at least under some circumstances. Even during the heyday of the “mere evidence rule,” which one hundred years ago prohibited searches for “mere evidence” of crime, 3 searches for contraband were still permitted. The only textual restriction in the Constitution is that these searches be reasonable. The devil lies in the details, of course, and the language of the Fourth Amendment provides few details. It may be that the Fourth Amendment’s Warrant Clause is separate and distinct from the reasonableness requirement, or it could be (as the modern Supreme Court of the United States has assumed 4 ) that they are indelibly linked. Judicial assistance might Copyright © 2016, Mark R. Brown. * Newton D. Baker/Baker and Hostetler Chair of Law, Capital University Law School. 1 Today, we often forget that the Constitution was not meant to secure liberty at all costs. The Framers were equally—and probably more—concerned with the survival of their new community. Their generation viewed the abuse of law as licentious (from “license”). See, e.g., DAVID LOWENTHAL, NO LIBERTY FOR LICENSE: THE FORGOTTEN LOGIC OF THE FIRST AMENDMENT 92–103 (1997) (explaining that the Framers rejected a “freedom so broad it would destroy free society itself”); Neil K. Komesar, A Job for the Judges: The Judiciary and the Constitution in a Massive and Complex Society, 86 MICH. L. REV. 657, 686–90 (1988) (discussing competing views of the Federalists and Anti-Federalists). 2 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 193 (1890). 3 See Gouled v. United States, 255 U.S. 298, 309 (1921). This rule was chipped away for a number of years and was finally laid to rest in Warden v. Hayden, 387 U.S. 294, 310 (1967). 4 See, e.g., United States v. Chadwick, 433 U.S. 1, 10 (1977) (“[W]e have held warrantless searches unreasonable, and therefore unconstitutional, in a variety of settings.”). 672 IS PRIVACY ON LIFE SUPPORT? [44:671 be a necessary part of reasonableness for all searches, as is often (and incorrectly) announced by critics and commentators. 5 Professor Cole’s wonderful Lecture describes a modern manifestation of this age-old problem. Technological changes coupled with world events (with unknowable variables) conspire to undermine privacy. What should the modern balance be? Can the community we call “government” follow our every movement? May it collect our commercial and personal information at will? Is it entitled to know whom we call, text, and e-mail? Can it constitutionally listen to our phone calls, read our texts, and catalogue our e-mail? One hundred years ago, even assuming the technology existed, this sort of surveillance by the federal government would have been impermissible. 6 Volumes have been written on the optimal balance between the individual right and the collective good. In the end, no one has been able to truly agree on a single or simple solution. Any student who has had to lug around a Criminal Procedure textbook knows this. Perhaps the most that can be said is that we have agreed on who should supply a solution: the Supreme Court of the United States. Contrary to conventional wisdom, deference to the courts on constitutional matters is an unfortunate...