Privacy and consent over time: the role of agreement in Fourth Amendment analysis.

• Author: Jolls, Christine

Like many legal systems around the world, the American system protects the "right to privacy," or, as Samuel Warren and Louis Brandeis famously put it, the "right to be let alone." (1) Although Warren and Brandeis's formulation has profoundly influenced privacy law, a moment of thought reveals that most of us do not wish to be entirely "let alone." An individual wholly surrounded by a cocoon of solitude--for instance, the Russian mathematician who declined the equivalent of a Nobel Prize because he preferred to remain secluded in his mother's St. Petersburg home--is a rarity (and usually at least somewhat of an oddity). (2) Although we do not want our homes or property to be open for inspection at all times, we usually want the police to be able to come in and take a look when we have been victims of a burglary.

Because most people want to be "let alone" in some circumstances, but not entirely, the issue of consent to letting another enter into one's own sphere looms large in privacy law. As the late philosopher Joel Feinberg put it, "The root idea ... of privacy is that of a privileged territory or domain in which an individual person has the exclusive authority of determining whether another may enter, and if so, when and for how long.... Within this area, the individual person is ... boss, sovereign, owner." (3) Privacy, far from referring to a sphere within which one is always "let alone," refers to a sphere in which we are allowed to determine who may enter, when, and under what circumstances.

The Fourth Amendment to the United States Constitution, protecting "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," (4) guards against government privacy invasions, and, as with other strands of privacy law, consent has long played a significant role. Under the Supreme Court's decision in Schneckloth v. Bustamonte, (5) an individual's voluntary agreement to a search means that no Fourth Amendment violation has occurred; (6) for instance, if a government official comes to my front door or to my car and asks if he or she may search my house or my car, and I say yes, then going ahead and searching my house or my car is permitted under the Fourth Amendment. (7) Today, "there are few areas of Fourth Amendment jurisprudence of greater practical significance than consent searches." (8) Although in some cases agreement to a search might be implied from the surrounding circumstances rather than taking the express form seen in Schneckloth, the doctrine and analysis in this Article focus on express agreement. (9)

That one's agreement is relevant--often highly so--to privacy analysis under the Fourth Amendment has been clear for decades. However, as the Fourth Amendment has confronted various features of modern life, significant fault lines around the role of agreement have appeared. The focus of this Article is some of those fault lines--and how we might go about beginning to repair them.

I

Let us start with two canonical cases from the modern era.

Case 1: Imagine that a public university's employee handbook specifies that employees may be subjected to random drug testing at any time in furtherance of the university's drug-free-campus policy. Employees must sign a form their first day on the job indicating that they will submit to such drug testing. Testing is done through laboratory analysis of a urine sample, with the urine sample being produced in the presence of a monitor to preclude the possibility of adulteration of the sample.

Has every university employee "consented to" producing a urine sample in the presence of a monitor for purposes of drug testing by virtue of the provision in the employee handbook? Does a Fourth Amendment challenge therefore immediately fail on grounds of such "consent"?

Under current law, the answer is clearly "no"; courts do not rely on consent in resolving Fourth Amendment challenges in drug testing cases of the sort just described. (10) Workplace drug testing challenges under the Fourth Amendment began to rise to prominence in the late 1980s with the United States Court of Appeals for the District of Columbia Circuit's decision in National Federation of Federal Employees v. Weinberger. (11) "We hold," wrote the Weinberger court, "that a search otherwise unreasonable [under the Fourth Amendment] cannot be redeemed by a public employer's exaction of a 'consent' to the search as a condition of employment." (12)

If the Fourth Amendment outcome is not determined by consent in a case such as Weinberger, then how is that outcome determined? Courts in such cases engage in a substantive balancing of two general interests: the employee's privacy interest in not performing "an excretory function traditionally shielded by great privacy" (13) at the request of, and with monitoring by, the employee's public employer; and the public employer's interest in detecting and deterring illegal drug use in service of "the efficient and proper operation of the workplace." (14) The question of whether workplace drug testing violates the Fourth Amendment turns on the relative weight of these two interests. Although "[a]dvance notice" of the workplace drug testing "may be taken into account as one of the factors relevant to the extent of the employees' legitimate expectations of privacy" (the first interest), (15) the legal framework remains one of balancing of the two substantive interests rather than a simple on-off switch of "consent."

The Weinberger court's adoption of a substantive balancing test in lieu of a consent-based approach to workplace drug testing is reflected in other circuits' case law as well. (16) An opinion written by Judge Wilkinson of the United States Court of Appeals for the Fourth Circuit in 2000 is illustrative. Notwithstanding an employee's signed drug testing agreement from his first day on the job, Judge Wilkinson's analysis of the employee's subsequent challenge to workplace drug testing focused not on the "consent" of the employee but rather on the importance of the government employer's interests in drug testing in relation to the employee's privacy interests. (17) "[T]he permissibility of a particular [search] is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." (18) Judge Wilkinson proceeded to analyze the challenged workplace drug testing on the basis of the strength of those interests --not based on any notion of the employee's "consent." (19)

Consider now a second paradigmatic case of our era, involving workplace computer surveillance.

Case 2: Materials gathered by a professor at a public university for a book he is writing include hundreds of controversial images, which he has stored on his computer hard drive. The university faculty manual provides that university computers may be monitored or scanned at any time. The professor signed a form the first day on the job acknowledging receipt of the manual and the professor's acceptance of its provisions. Nine years later, the professor learns that his hard drive, with its controversial material, has recently been comprehensively imaged by the university computer services department. Did the professor, in signing the form presented to him on his first day on the job, "consent" to the comprehensive imaging, such that the imaging is automatically permissible under the Fourth Amendment?

In today's Fourth Amendment case law on computer surveillance, we see some courts adopting the type of consent argument that was squarely rejected in the drug testing context discussed above. Interestingly, the most prominent of the rulings adopting consent analysis in the context of computer surveillance was decided by the United States Court of Appeals for the Fourth Circuit within a few months of the Judge Wilkinson opinion discussed above.

The Fourth Circuit surveillance case, United States v. Simons, (20) arose from the imaging of an employee's hard drive after the employee had come under suspicion of harboring child pornography on his computer. (21) The Fourth Circuit panel, not including Judge Wilkinson, dismissed the employee's Fourth Amendment challenge to the computer surveillance on the ground that the employee did not "assert that he was unaware of, or that he had not consented to, the [workplace] Internet policy," which allowed the employer to "inspect, and/or monitor the user's [computer]." (22) The court held that in light of the employee's "consent," there was no need to engage in any balancing of his privacy interests versus the government's interests in workplace efficiency and safety. (23) Because of the employee's "consent," the Fourth Amendment argument seemed to be over before it even really began.

In the years following Simons, several other cases have taken a similar approach to computer surveillance. In United States v. Thorn, (24) for instance, the United States Court of Appeals for the Eighth Circuit ruled against a government employee's challenge to workplace computer surveillance on the ground that the employee "was fully aware of the computer-use policy, as evidenced by his written acknowledgement of the limits imposed on his computer-access rights," including the provision that he had "no personal right of privacy with respect to" his employer's computers. (25) Likewise, the court in United States v. Gavegnano (26) rejected a child pornography defendant's Fourth Amendment challenge to computer surveillance on the ground that when he "was issued a government computer, the user agreement he signed stated that he was aware of the acceptable use of all government-issued information systems, [and] that he consented to the monitoring of the information systems." (27)

The approach to computer surveillance adopted in Simons has not been universally followed. For example, a 2007 opinion by the United States Court of Appeals for the Ninth Circuit...