The end of privacy.

• Author: Rubenfeld, Jed
• Position: Unreasonable searches and seizures

INTRODUCTION I. THE PROBLEM WITH PRIVACY A. Katz B. Circularity C. Widely Shared Social Expectations D. Privacy and the Perfect Stranger 1. Reasoning like a stranger 2. The Stranger Principle E. The Untenability of the Stranger Principle II. FROM PRIVACY TO SECURITY: HOW THE FOURTH AMENDMENT'S PRIVATIZATION FAILS To DO JUSTICE TO ITS TEXT A. The Right To Be Let Alone and the Privatization of the Fourth Amendment B. Repoliticizing the Fourth Amendment C. Reading the Fourth Amendment as Written III. A JURISPRUDENCE OF SECURITY A. The Core Meaning of the Fourth Amendment 1. General warrants 2. Probable cause B. The Meaning of Security C. Personal Security as the Security of Personal Life D. The Test of Generalizability E. Applying the Test of Generalizability 1. Katz, circularity, and the Stranger Principle 2. Undercover agents 3. Randolph 4. Standing IV. UNLAWFUL ENEMY COMBATANTS, DATA MINING, AND WIRETAPPING A. Unlawful Combatant Detentions 1. The fundamental requirement 2. The Fourth Amendment at war 3. Quirin and Korematsu 4. Quarantines and psychiatric confinements 5. Emergency wartime exceptions B. In formation from Telephone Companies and Internet Service Providers C. Wiretapping 1. Nonprosecutorial motive for surveillance 2. International communications 3. One party reasonably believed to be an al-Qaeda agent 4. The significance of FISA CONCLUSION INTRODUCTION

How fragile a thing, law.

Not long ago, the notion that Americans could be seized off the streets, arrested, and jailed without probable cause might have seemed laughable. The power to incarcerate on mere suspicion or executive say-so belonged to dictatorships. "We allow our police to make arrests only on 'probable cause,'" we used to be told; "[a]rresting a person on suspicion, like arresting a person for investigation, is foreign to our system." (1)

But in 2002, the President of the United States claimed and exercised the power to designate an individual, including an American citizen seized on American soil, an "unlawful enemy combatant"--and to imprison him on that basis, without probable cause and with limited if any judicial review. (2)

Not long ago, it was possible to believe that the government could intercept Americans' telephone calls only with probable cause and, absent exigent circumstances, judicial authorization. As late as 2004, the President declared:

Now, by the way, any time you hear the United States Government talking about wiretap, it requires--a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution. (3) These statements, it turned out, were not true. As the President would later admit, he had in 2002 personally but secretly authorized (and then repeatedly reauthorized) the National Security Agency (NSA) to intercept Americans' telephone calls and e-mail messages in certain circumstances without probable cause and without a court order. (4) At the same time, the NSA reportedly procured from major telecommunications companies access to communications data on tens of millions of people unsuspected of any crime. (5)

This Article is about the Fourth Amendment. It is an attempt to recover that amendment's core meaning and core principles.

Why has the Fourth Amendment, despite explicitly governing seizures of the person, played so minimal a role in the judicial response to the "unlawful combatant" detentions? (6) What allows courts to find no Fourth Amendment search or seizure when the government obtains records from telephone companies or Internet service providers showing whom you have communicated with and when and for how long? (7) What allowed the Sixth Circuit last summer to dismiss a challenge to the NSA's covert wiretapping on grounds implying that the program might never be reviewed under the Fourth Amendment at all? (8) What flaw, in short, in modern doctrine has made the Fourth Amendment so irrelevant to the present search and seizure debates--and how could it reclaim its relevance? This Article tries to answer these questions.

At the heart of search and seizure law today, there is a kind of doctrinal black hole, known as the "reasonable expectation of privacy." (9) This concept, the "touchstone of Fourth Amendment analysis," (10) has never been able to do the work required of it.

The most obvious problem with expectations-of-privacy analysis is circularity, but this problem, as we shall see, is much exaggerated. 11 A second, more fundamental difficulty is that expectations of privacy do not really speak to arrests or imprisonment--that is, to seizures of the person. Arrests can impinge on privacy, of course, but that is not what makes an unconstitutional arrest unconstitutional; an arbitrary arrest would still violate the Fourth Amendment however scrupulously it preserved privacy. Hence an oddity: the "touchstone" of modern Fourth Amendment law fails to touch one of the paradigmatic abuses--arrests lacking probable cause made under a general warrant--that the Fourth Amendment was enacted to forbid. (12) It is no coincidence that a Fourth Amendment centered on expectations of privacy has little to contribute to the dispute over suspicion-based incarceration of unlawful enemy combatants.

But even with respect to surveillance, modern privacy-based doctrine fails to stand against practices that seem to cry out for constitutional check. It may not speak to everyone, but let me try to illustrate with a hypothetical.

Imagine a society in which undercover police officers are ubiquitous. Nearly every workplace has at least one, as does nearly every public park, every store and restaurant, every train and plane, every university classroom, and so on. These undercover agents wear hidden microphones and video cameras, recording and transmitting everything they hear or see. Your colleagues, coworkers, or closest friends may be spies. Perhaps there is one in your own family.

Existing Fourth Amendment law would find nothing wrong with this picture. Whenever we speak with others, the Supreme Court has held, we assume the risk that they might report what we say to the police; hence no reasonable expectation of privacy is violated if our interlocutors do in fact transmit what we say to the police, and hence no Fourth Amendment safeguards apply. (13) Yet the ubiquitous deployment of secret police spies would seem to represent an almost totalitarian form of surveillance deeply antithetical to the freedom from state scrutiny of our personal lives for which the Fourth Amendment stands.

In this Article, I will argue that Fourth Amendment law should stop trying to protect privacy. The Fourth Amendment does not guarantee a right of privacy. It guarantees--if its actual words mean anything--a right of security. (14)

Despite privacy's triumph, the right "to be secure" that the Fourth Amendment actually protects has never died. It still flickers in the case law and scholarship, (15) even if without much doctrinal function and even if unsatisfactorily defined. (16) By revitalizing the right to be secure, Fourth Amendment law can vindicate its text, recapture its paradigm cases, and find the anchor it requires to stand firm against executive abuse.

Part I of this Article analyzes the logical dead end to which "reasonable expectations of privacy" doctrine leads. Part II addresses the broader question of what Fourth Amendment jurisprudence lost when it took privacy as its central term; I argue here that among the things it lost was an interpretation of the Fourth Amendment's text that reads it as written, with a right of security as its central commitment. Part III lays out the central tenets of a Fourth Amendment committed to security and explains where a jurisprudence of security would agree, and where it would disagree, with existing case law. Part IV applies the Fourth Amendment's right of security to three of the most prominent detention and surveillance controversies that have arisen since September 11.

1. THE PROBLEM WITH PRIVACY

   1. Katz

      Modern Fourth Amendment doctrine begins with Katz v. United States, (17) which declared unconstitutional the wiretapping (without probable cause) of a public telephone booth. The Fourth Amendment, the Katz Court famously held, "protects people, not places." (18) Thus untethered from the law of trespass, (19) the Fourth Amendment required a new principle, and in a concurrence that eventually supplanted the majority opinion, Justice Harlan provided it.

      To state a valid Fourth Amendment claim, wrote Harlan, an individual must have "exhibited an actual (subjective) expectation of privacy," and that expectation must have been "reasonable." (20) Not long after Katz, the full Court adopted Justice Harlan's formulation. (21) Fourth Amendment law has sought to protect "reasonable expectations of privacy" ever since. (22)

   2. Circularity

      Commentators have long condemned the "reasonable expectations of privacy" test as ineluctably circular. (23) The threat of circularity--or more accurately of a kind of prospective self-validation--is easy to see. Suppose the President announces that all telephone conversations will henceforth be monitored. Arguably, no one thereafter can reasonably expect privacy in his phone calls, and the announced eavesdropping will have constitutionalized itself. The same problem will afflict legislative and judicial pronouncements about police searches or seizures.

      So long as judges determine people's "reasonable expectations of privacy" by asking what conduct people have reason to expect specifically from policemen or other government agents, this circularity will be unavoidable. For then any surveillance measure adopted by the police, announced by the...