I'm not dead yet: Katz, Jones, and the Fourth Amendment in the 21st century.

• Author: Pesciotta, Daniel T.
• Position: IV. Katz Lives through Conclusion, with footnotes, p. 213-255

4. KATZ LIVES

   Academic reception of Katz's reasonable expectation of privacy test has been lackluster at best. One commentator, although characterizing the holding of Katz as "revolutionary," argues that "the passage of time ... [has] show[n] that Katz ... [has done] little to protect Fourth Amendment liberties." (156) Other commentators have criticized Katz for being ambiguous and failing to provide adequate guidance as to how the reasonable expectation of privacy test ought to be applied. (157) With regard to the Fourth Amendment and modern technologies, commentators have argued that the reasonable expectation of privacy test in its current state is insufficient to protect citizens from warrantless e-mail searches (158) and video surveillance. (159) Several commentators have even proposed doing away with the reasonable expectation of privacy test all together. (160) Some of the initial reaction to United States v. Jones seems to suggest that many of these commentators won't be changing their minds anytime soon. (161)

   Despite such negative commentary, significant evidence indicates that the reasonable expectation of privacy test has more than adequately protected citizens' privacy interests in the past and that it will continue to do so even in the face of advancing technology. The Supreme Court's own Fourth Amendment jurisprudence supports this proposition. (162) Further, lower courts have dealt with several types of modern technology that the Supreme Court has yet to pass judgment on and have utilized the reasonable expectation of privacy test to protect the privacy interests of citizens. (163) As such, recommendations that the Court abandon Katz and the reasonable expectation of privacy test in the face of advancing technology would seem at the very least premature, and, as shown below, completely unnecessary.

   1. A Lack of "Modern" Technology Fourth Amendment Cases

      Before analyzing the Supreme Court's Fourth Amendment jurisprudence, it is important to point out that the Court has ruled on an extremely small number of Fourth Amendment cases dealing with modern technology. Before the Court's ruling in Jones (164) this past term, Kyllo was the Court's only Fourth Amendment case substantively involving some sort of modern technology in the past twenty years. (165) Many rapidly advancing technologies with serious Fourth Amendment implications, such as video surveillance, (166) have yet to come before the Court in any Fourth Amendment context. Perhaps most notably, and despite extensive academic condemnation of the reasonable expectation of privacy test in the realm of the Internet, (167) the Court has never ruled on a Fourth Amendment case dealing with a search of information on the Internet.

      From these considerations alone, this Note urges patience oil the part of Fourth Amendment commentators. It is no secret that the Court prefers to let issues percolate in the district and circuit courts before definitively ruling on them. (168) and often feels bound by judicial restraint to rule only on matters immediately before it. (169) The Court has been particularly inclined toward this practice in the law and technology context. (170) For this reason, it is as of yet unclear how the Court will apply the reasonable expectation of privacy test to many of the new technologies of the past twenty years, meaning that the call for Katz's demise has been, at the very least, premature. In the meantime, commentators concerned about poorly reasoned lower court opinions unduly influencing the Supreme Court should take solace in the fact that in Kyllo the Court granted a criminal suspect "a protection previously rejected by five federal courts of appeals and adopted by none." (171) Further, substantial evidence in the jurisprudence of both the Supreme Court and the lower courts suggests the reasonable expectation of privacy test provides a more than satisfactory framework for protecting citizens' Fourth Amendment privacy rights in the face of advancing technology.

   2. Katz and the Protection of Citizens' Privacy

      1. Unwavering Protection of the Home

         Ample language exists in the Supreme Court's Fourth Amendment decisions to suggest that, as the Court begins to hear more Fourth Amendment cases dealing with modern technology, it will apply the reasonable expectation of privacy test in a manner that protects citizens' privacy. First and foremost, the Court has always been steadfast in its protection of privacy in the home--an area in which all citizens undoubtedly expect the utmost level of privacy. As early as 1886, the Court recognized that the Fourth Amendment "appl[ies] to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life." (172) The Court has never wavered from this principle. In Karo, the Court recognized as a "basic Fourth Amendment principle" that "private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant." (173) In language undoubtedly referencing Katz's reasonable expectation of privacy test, the Court noted that this "expectation is plainly one that society is prepared to recognize as justifiable." (174) With this language in hand, the Court went on to hold in Karo that beeper tracking technology could not be used without a warrant to "reveal a critical fact about the interior of [a house] that the Government is extremely interested in knowing and that it could not have otherwise obtained without a warrant." (175)

         More recently, the Court dealt with infrared technology in Kyllo. (176) Staying true to its emphasis on protecting the privacy of the home, the Court, per Justice Scalia, (177) noted that "'[a]t the very core' of the Fourth Amendment 'stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'" (178) The Court went on to cite the reasonable expectation of privacy test, stating that

         the Fourth Amendment draws a firm line at the entrance of the house.... In the case of the search of the interior of homes ... there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. (179) The Court ultimately held that the warrantless use of infrared technology to detect temperature levels in the defendant's house was contrary to the Fourth Amendment. All details of the home's interior, the Court noted, are protected "from prying government eyes" under the Fourth Amendment. (180) The Court used Kyllo to draw "a firm line at the entrance of the house" to ensure that law enforcement cannot use advanced technology to intrude upon the most private of all place--the home. (181)

         The language and holdings of cases like Karo and Kyllo make abundantly clear that the Court has successfully used the reasonable expectation of privacy test to defend citizens' privacy interests in their homes from invasive modern technologies. This is of the utmost importance. Throughout this nation's history, and indeed even well before it, (182) the home has been considered a "sacred" place, "a haven from the anxieties of modern life ... [that provides] a shelter for ... moral and spiritual values." (183) The importance of having a home that one can retreat to for privacy has been recognized by virtually all facets of American culture; everything from books (184) and movies (185) to zoning (186) and tort law (187) place high value on the home as a haven. All citizens "wish at some point to draw a line, to pull the shades, and to turn inward ... [in order] to contemplate [their] own thoughts and feelings." (188) Since privacy is "[a]t the very core" of what the Fourth Amendment seeks to protect, and the home is the epitome of privacy in our nation, it is a vitally important point that current Fourth Amendment jurisprudence steadfastly protects it. (189) The Court has used the reasonable expectation of privacy test to ensure continued protection of the home and the privacy interests it embodies, even in the face of modern technologies like electronic tracking and infrared surveillance. Cases like Karo and Kyllo therefore demonstrate two instances in which the reasonable expectation of privacy test has successfully protected citizens' Fourth Amendment privacy interests. Even some of the commentators who have been most critical of the reasonable expectation of privacy test would seem to agree with this point. For instance, Professor Orin Kerr, though clearly critical of Katz, acknowledges that "an expectation of privacy becomes 'reasonable' ... when it is backed by a right to exclude borrowed from real property," which includes a citizen's "reasonable expectation of privacy in his home." (190)

      2. The Third-Party Doctrine: Societal Expectations and Effective Law Enforcement

         Most commentators critical of the reasonable expectation of privacy test would not seriously contest that the Court has gone to great lengths to protect privacy interests in the home. Rather, commentators' worries lie largely in their belief that the reasonable expectation of privacy test fails to protect expectations of privacy outside the home environment. In particular, many commentators express great concern about the Court's application of third-party doctrine in its Fourth Amendment jurisprudence. (191) Though these commentators are correct that Katz offers less protection to privacy interests outside the home, this lower level of protection is not due to deficiencies in the reasonable expectation of privacy test. Rather, this lesser level of protection is due to a combination of long-standing precedent that predates Katz, society's actual expectations, and the needs of balancing private citizens' rights with those of efficient and effective law enforcement.

         The Court's rulings in United States v. White (192) and Smith v. Maryland (193) received particular criticism from...