Fourth Amendment privacy interests.

• Author: Heffernan, William C.

1. INTRODUCTION

   Is it possible to incorporate a serious concern for privacy into Fourth Amendment (1) jurisprudence? Even before the terrorist attacks on America, the question was a pertinent one; in the aftermath, it has become even more so. Fourth Amendment case law is of course grounded in an explicit concern for reasonable expectations of privacy. (2) But given a long line of decisions rendered prior to the attacks, one could hardly say that the Supreme Court has shown a serious concern for privacy. The Court, for example, has held that individuals do not have any Fourth Amendment privacy interests in their bank records, (3) in the phone numbers they dial, (4) or in freedom from low-flying surveillance of their backyards. (5) Moreover, by the Court's analysis, even our garbage places us at risk. If someone wraps her garbage carefully in an opaque bag and places the bag on the street, that person, the Court has held, cannot expect the police to refrain from inspecting it to find out what's going on in her home. (6)

   Clearly, the Court has parsed the concept of privacy as thinly as possible. It has expressed concern for residential privacy (7)--but has allowed police helicopters to conduct surveillance of backyards. (8) It has expressed concern for the privacy of phone conversations (9)--but has said people have no privacy interest in the numbers they dial. (10) Whether--or how much--terrorism's arrival in America will influence future privacy jurisprudence is hard to say, but it does at least seem clear that even before its advent the Court did not take privacy seriously as a Fourth Amendment value. My question at the outset, though, was not directly concerned with Supreme Court rulings. Rather, I asked whether it is possible to incorporate a serious concern for privacy into Fourth Amendment jurisprudence. In this Article, I argue that it is. But a cogent argument can be advanced to the contrary, an argument that requires special attention given the challenge that police work poses for privacy interests.

   The core features of this counterargument are easy to grasp. Privacy norms require people to exercise forbearance in everyday life: they require people not to act on their curiosity about their neighbors and officemates, not to encourage third-party confidences, not to snoop through incoming mail, and so on. But the police, it could be contended, must be exempted from these norms. This exemption is essential for the investigation of what the Court has called "ordinary criminal wrongdoing." (11) It is wholly indispensable, one could continue, for police work on what the Court has called "special governmental needs" (12) (the investigation of terrorism quite clearly comes under this heading). Police officers, it could be conceded, must avoid egregious violations of privacy norms. Nothing more than this should be expected of them if they are to perform their function effectively.

   Indeed, one could further argue that the Supreme Court's privacy jurisprudence is admirable precisely because it draws the line here. The central principle of Fourth Amendment case law, it could be maintained, is that the police cannot engage in egregious privacy violations--for example, they must respect the privacy of the home (13) and personal belongings carried outside the home. (14) On the other hand, the corollary principle implicit in the case law is that the police are otherwise free to gather information about people--and so they can use helicopters to hover over backyards, (15) can sift through people s garbage, (16) and so on. If undertaken by a layperson, the Court's defender would say, these activities would be called "snooping." When undertaken by the police, the defender might continue, the same activities should be endorsed as sound law enforcement practices.

   Because it is too early to tell what effect, if any, the investigation of terrorism will have on privacy jurisprudence, (17) I devote the bulk of this Article not to the special problems that will arise in the aftermath of the attacks on New York and Washington, but to an examination of the argument, outlined above, as applied to police investigation of ordinary criminal wrongdoing. In particular, I respond in two ways to the claim that police are entitled to a discount from lay privacy expectations. First, I agree that the argument provides a descriptively accurate account of the Court's position on Fourth Amendment privacy protection. The Court, I suggest, has relied on a critical ambiguity in its privacy decisions. When speaking in general terms, it has made privacy protection appear to hinge on lay people's understandings of how they should treat each other--thus the significance of the often invoked reference to the expectations of privacy "that society is prepared to recognize as reasonable." (18) When resolving specific cases, though, the Court has reasoned in terms of a narrow, occupationally-grounded conception of privacy. (19) The police, the Court has implied, perform a legitimate role as front-line information gatherers about the public. (20) They are thus entitled, it has further implied, to a special dispensation from everyday privacy norms, one that doesn't extend to egregious violations but that does encompass minor ones. (21)

   On the other hand, I argue that as a normative matter the distinction between occupationally-grounded and lay conceptions of privacy is constitutionally unacceptable. The Court, I suggest, has reasoned in terms of a vigilance model of privacy, one that requires people to be constantly alert to the way in which others can intrude on their lives. (22) The vigilance model, I maintain, is inappropriate even when the investigation of terrorism is concerned; the proper approach there is to recalibrate the Fourth Amendment balancing test by taking into account the special urgency of public security while continuing to accord full weight to lay expectations of privacy. And when we move beyond the special problems occasioned by terrorism, we can see how wholly inappropriate the model is for the investigation of ordinary criminal activity. Vigilance is particularly troubling as an informing principle once one takes into account law enforcement's appetite for information and its capacity to feed it.

   The Court, I suggest, has been blind to the points just made; indeed, it has fundamentally misconceived the nature of privacy norms. These norms are grounded not in vigilance but in an expectation of forbearance on the part of others--that is, in an expectation that others will restrain their curiosity with respect to those aspects of life that are essential to defining and maintaining individual identity. The notion of forbearance explains why privacy matters to us: we cherish it because it holds out the prospect of an unanxious shelter from the larger world. When the Court has spoken about reasonable expectations of privacy, it has appeared to be concerned with the substantial degree of forbearance that underlies everyday privacy norms though in fact it has reasoned in terms of the norms followed by those whose job is to penetrate privacy. (23) I argue that the Court should honor the premise implicit in its standard.

   This Article is divided into three sections. The first examines the development of Fourth Amendment privacy doctrine; the final two provide a framework for improving contemporary doctrine. My aim in the first section is to trace the evolution of Fourth Amendment privacy jurisprudence--to show why eighteenth century courts linked privacy protection to the law of trespass and explain why it was proper for the twentieth century Supreme Court to sever this connection. In the second section, I outline a forbearance approach to privacy protection and contrast it with the Court's vigilance model. Even in settings where terrorism is under investigation, I maintain, privacy expectations, understood in terms of the forbearance model, are entitled to full respect. What distinguishes the policing of terrorism, I contend, is not the weight to be accorded privacy interests, but the extra emphasis entitled government interests in preserving public safety. In the final section, I apply the forbearance approach to specific Court decisions concerning ordinary criminal activity. In the course of this section, I consider not only those settings where police conduct surveillance of suspects but also those in which the police penetrate private life, either by encouraging individuals to betray intimate acquaintances or by seeking a foothold of false intimacy themselves.

2. PRIVACY AND PERSONAL SECURITY: ENTICK TO OLMSTEAD TO KATZ

   Two issues--one conceptual, one interpretive--must be considered when thinking about Fourth Amendment privacy interests. The conceptual one has to do with the meaning of the term "privacy," the interpretive with the Fourth Amendment's bearing on privacy. Clearly, the conceptual issue has priority: we need to understand what people mean when they talk about privacy before we can understand how the Fourth Amendment protects it. I thus begin this section with some provisional comments about the concept of privacy, comments I then use to examine changing interpretations of the Amendment. In the next section, I expand on these provisional remarks as I advance an alternative to the Court's account of Fourth Amendment privacy protection.

   As a provisional matter, we can say that privacy has two strands. The first has to do with access to one's person, the other with information about key aspects of one's life. These strands can converge: when someone wishes not to reveal something about her person (a scar on her abdomen, a glandular disease, etc.), then limiting access to her person becomes essential to controlling the dissemination of information about herself. But they don't have to converge. Think first about access to one's person. If someone rushes home from a car trip announcing that her bladder is full and that...