The problems with privacy's problem.

• Author: Seidman, Louis Michael
• Position: Response to article by William J. Stuntz in this issue, p. 1016

There is so much right about Professor Stuntz's important and provocative article(1) that it seems a shame to focus exclusively on what is wrong. So let me say at the outset that Professor Stuntz is right to be concerned about police violence. He is right when he asserts that privacy has a problem, and he is right that the problem is associated with the rejection of Lochner v. New York.(2)

In my judgment, however, Stuntz is mostly wrong about what privacy's problem is. The real problem is not about informational privacy, and it is both more complex and less remediable than the one he identifies.

In Part I of this response, I suggest some reasons why the problem on which Professor Stuntz focuses is less serious than he supposes. Part II sketches the real problem and some of its consequences.

1. Professor Stuntz's Problem

   Stuntz deserves credit for focusing on what too many have ignored: that constitutional criminal procedure has changed as the world view exemplified by Lochner has lost credibility.

   For present purposes, Lochner stands for the proposition that natural, discoverable, and judiciary enforceable boundaries separate public and private, feasance and nonfeasance, and freedom and coercion. According to this proposition, when the government, affirmatively acts to invade a private sphere, it coerces individuals, and its conduct is constitutionally suspect. When the government fails to act, individuals who do not venture into the public sphere are free, and no constitutional issue is raised by its inaction.(3)

   The growth of the regulatory state and its constitutional validation unsettled this world view. Since 1937, the Supreme Court has largely disclaimed the task of policing a natural boundary between public and private,(4) at least with respect to ordinary social and economic legislation.(5) Instead, it has allowed the political branches both to treat the private sphere as constituted by a pattern of government ions and inactions and to conclude that individual freedom might best be promoted by government action rather than inaction.(6) As a result, the judiciary has. been less vigorous in defending the social and economic status quo, and has demonstrated far greater tolerance of government actions designed to redistribute wealth and power.

   For reasons I will discuss in Part II, I believe that the assimilation of this post-Lochner learning has been less complete than is commonly supposed.(7) For now, though, it is enough to observe that the changes that have occurred could not possibly leave criminal procedure untouched.

   During the Lochner era, an individual's property was located within the private sphere, where it was subject to judicial protection. Lochner-type thinking therefore provided a firm base for an interpretation of the Fourth and Fifth Amendments that protected substantive rights of property. The "mere evidence" rule, which absolutely prohibited seizures of things that were neither contraband nor the fruits or instrumentalities of crime,(8) and the trespass requirement for searches, which assimilated the Fourth Amendment to common law property definitions,(9) fit neatly within this framework.

   The conventional view of the post-Lochner world is that the Court adjusted criminal procedure by substituting privacy for property as the constitutionally protected value.(10) Thus, the Court jettisoned the mere evidence rule and thereby abandoned absolute, property-based protections against seizures(11) and replaced the property-oriented trespass test with a free-floating, "reasonable expectation of privacy" standard for searches.(12)

   A great strength of Stuntz's article is its convincing demonstration that this conventional view is wrong. He is plainly correct when he asserts that informational privacy, like absolute protection for property, is inconsistent with the presuppositions of the regulatory state.(13) Today, countless government agencies regularly demand information from citizens that would have been out of bounds under the old regime.(14) Stuntz is also right when he notes the connection between these procedural changes and the expanding scope of the government's substantive powers.(15)

   Where Stuntz has gone astray, I think, is in failing to recognize other ways in which the law of criminal procedure has adjusted to the change in legal regimes. The adjustment is most obvious with respect to Fifth Amendment law. As Stuntz himself acknowledges,(16) the central focus of modem self-incrimination cases is not informational privacy. Although privacy of a sort may be a necessary condition for Fifth Amendment protection, it is no longer a sufficient condition. Moreover, even when privacy is required, it is not the kind of informational privacy Stuntz envisions.

   Thus, the Court has repeatedly held that the Fifth Amendment shields defendants "from producing ... [incriminating] evidence but not from its production."(17) When the government searches a house, wiretaps a conversation, seizes or subpoenas private papers, or takes blood samples, it clearly invades informational privacy. Yet these activities raise no Fifth Amendment issue.(18)

   The modern Fifth Amendment is about individual will and freedom of thought, not informational privacy.(19) Its main focus is not on keeping things secret but on assuring that the defendant is not forced to cooperate in the discovery of evidence that inculpates him.

   Under modern Fifth Amendment doctrine, the government may secure incriminating information against a defendant's win, but it may not use her will to serve its ends. For example, the government may forcibly subject a drunk-driving suspect to a blood test because this is something that can be done against the defendant's will.(20) The government may not force the same defendant to state the date of her sixth birthday because such a statement can be achieved only through the exercise of will.(21)

   True, this prohibition on the commandeering of an individual's will is not absolute. The government is permitted to use a person's will in circumstances in which the evidence thereby obtained does not provide incriminating information about an individual's internal thoughts, desires, and beliefs.(22) Consider compelled handwriting exemplars, for example. Blood can be taken against a suspect's will, but providing a handwriting exemplar requires an exercise of will. Still, compelled handwriting exemplars do not violate the Fifth Amendment because they are thought to reveal nothing about the defendant's internal mental state.(23) Similarly, immunized testimony can be compelled even when it does provide internal information because this information is, by hypothesis, not incriminating.(24)

   There is therefore a sense in which Fifth Amendment law relates to the sort of information that the government obtains by compulsion. It does not follow, however, that the Fifth Amendment is concerned with informational privacy in the sense that Stuntz uses the term. Fifth Amendment protection does not attach simply because a person is compelled to provide information the government otherwise would not have learned. The government can compel a defendant to provide it with such information - for example, the shape of his handwriting or the sound of his voice - so long as the information is not "internal" in the sense described above. Moreover the government can secure even "internal" information - for example, by seizing or subpoenaing a defendant's diary - so long as it does not do so in a way that commandeers his will.(25)

   If I read him correctly, Stuntz understands all this.(26) The mystery, then, is what, precisely, he thinks the problem with modern Fifth Amendment law is. He is right to suppose that there is a problem, and I explore its nature in Part II of this response. For now, it is enough to note that, whatever its nature, the problem is not informational privacy.

   The story with respect to the Fourth Amendment is more complex. It is true that the modem Court talks about Fourth Amendment doctrine in terms of informational privacy.(27) Viewed superficially, this focus is in tension with the Court's abandonment of substantive limits on government regulation and with its readiness to permit the government to learn an sorts of facts about our private lives in order to implement a regulatory regime.

   Once again, however, Stuntz fails to take adequate account of how Fourth Amendment law has changed in order to accommodate itself to the new constitutional ideology. When one focuses on these changes, two problems with Stuntz's problem emerge.

   First, Stuntz exaggerates the tension between the supposedly strict Fourth Amendment regime and the supposedly loose regulatory regime. On the one hand, the Court has never quite retreated to the position that there is no judicial review of regulatory legislation. Instead, it has insisted that such laws have a "rational basis" and survive some form of low-level or minimal scrutiny.(28) On the other hand, the modem Court has not read the Fourth Amendment as providing absolute protection against searches.(29) In general, searches are permitted so long as they are supported by some quantum of evidence - either probable cause(30) or reasonable suspicion(31) depending upon the context.

   In recent years, the gap between these two standards has narrowed. On occasion, the Court's minimal scrutiny of social and economic legislation has had "bite" that has led to invalidation.(32) More significantly, the Court has largely retreated from the task of reviewing probable cause and reasonable suspicion determinations. Instead of turning these standards into fixed and rigid requirements, it has treated them as a "practical, nontechnical conception"(33) hat is "not readily, or even usefully, reduced to a neat set of legal...