A world without privacy: why property does not define the limits of the right against unreasonable searches and seizures.

AuthorColb, Sherry F.

Imagine for a moment that it is the year 2020. An American company has developed a mind-reading device, called the "brain wave recorder" ("BWR"). The BWR is a highly sensitive instrument that detects electrical impulses from any brain within ten feet of the machine. Though previously thought impossible, the BWR can discern the following information about the target individual: (1) whether he or she is happy, sad, anxious, depressed, or irritable; (2) whether he or she is even slightly sexually aroused; (3) whether he or she is taking any medication (and if so, what the medication is); (4) if a female subject, whether she is pregnant; (5) whether he or she is experiencing a feeling of guilt or remorse; and (6) whether he or she is having aggressive impulses toward another person or persons. At this stage in its development, we do not know whether or not the BWR will advance beyond detection of this information and whether or not it will become generally available to the public. It is currently a technology that belongs exclusively to the government and to extremely wealthy private collectors.

Under Professor Orin Kerr's provocative and interesting thesis, (1) federal or state police could use the BWR on innocent people without implicating their Fourth Amendment rights against unreasonable searches and seizures. (2) To be more concrete, if, for example, the police were to utilize the BWR to determine whether John Doe--a man who neighbors say seems "strange" and doesn't "fit in"--feels sexually aroused when he is in the presence of women, the man could not complain of an invasion of any Fourth Amendment reasonable expectation of privacy.

On Kerr's analysis, while existing Fourth Amendment doctrine nominally protects normatively and empirically reasonable expectations of privacy, in practice, in almost all cases, the doctrine protects only property (in a broad and flexible sense, so that it includes rented spaces, for example) but not privacy. Because the BWR reads Doe's internal state without physically trespassing on his property, the regulation of its use--as a matter of most of the case law--should be left to Congress. As a normative matter, Kerr proposes that the Supreme Court defer to Congress in the area of handling the privacy implications of evolving technologies.

The Supreme Court and other judicial bodies, according to Kerr, would have a difficult time understanding the mechanics of how the BWR works or the context in which it might be used, whether by private people or by law enforcement. (3) Moreover, the courts would be unlikely even to reach the issue of how the Fourth Amendment applies to the BWR for many years after its appearance on the technological scene. (4) Congress would therefore represent (and has historically represented) a better source of protection for our privacy from hi-tech government intrusion than the judiciary.

In one sense, the source of our privacy does not seem to matter very much. Most people would presumably want to be protected from the use of the BWR, particularly when the government lacks probable cause or some other articulable basis for suspecting the individual targeted. But if we were effectively protected from such intrusion, then the fact that it was Congress doing the protecting rather than the courts would probably not make much of a difference in people's lives. Indeed, most Americans probably do not even know--when they think about particular privacy rights--whether those rights exist as a matter of statutory or constitutional law.

The question for courts, however, and for those like Professor Kerr and myself who study the constitutional law of criminal procedure, is not whether robust privacy protection from Congress is somehow better or worse than what courts can provide. The appropriate question is whether courts have (and whether they ought to have) an obligation to apply the Fourth Amendment to new technologies (5) that could invade privacy without physically trespassing on anyone's private property. Kerr answers this question no, and I answer it yes.

Because I like to draw links between substantive and procedural privacy, (6) I cannot resist drawing a comparison between Kerr's proposal regarding technology and the Fourth Amendment, on the one hand, and arguments about abortion and substantive due process, on the other. If the Supreme Court had decided Roe v. Wade (7) differently, some argue, state and/or federal law might well have protected the right to abortion. (8) Such protection would have been more legitimate than what the Supreme Court offered, critics suggest, because it would have emerged from a fact-sensitive body more able to give a nuanced consideration to all of the medical and technological dimensions of the problem. (9)

In a dissenting opinion in City of Akron v. Akron Center for Reproductive Health, Inc., (10) for example, Justice O'Connor suggested that, with advances in technology that push fetal viability earlier into pregnancy, the trimester framework established by Roe was "clearly on a collision course with itself." (11) She thereby implied that the Court--by protecting the right to abortion--had ventured into territory where it lacked competence and in which it would continually have to revise its judgments. (12) The argument is similar to Kerr's regarding technological invasions of privacy. Justice O'Connor, moreover, also thought that legislative judgment would generally be more appropriate than judicial decisionmaking. Crucially, however, she was not willing (as Kerr is) to defer to state legislatures or Congress in the area of rapidly changing technologies. (13)

  1. DOCTRINE

    In evaluating Kerr's thesis, let us first consider the doctrinal claim. Kerr says that notions of property rather than privacy have driven the post-Katz decisions of the United States Supreme Court. (14) He supports this claim by attempting to demonstrate that a large number of the cases supposedly decided under the "reasonable expectation of privacy" framework are in truth more faithful to property law, broadly construed, than they are to privacy. There are a few reasons to question this claim, however, one of which is ultimately a matter of interpreting precedents.

    First, in explaining its decisions, the Court refers repeatedly to "reasonable expectations of privacy" rather than to property, in the cases following Katz. These references may indeed reflect only some misguided need to profess fidelity to the Katz decision (or at least to Justice Harlan's concurring opinion in that case), while in fact pursuing the property-based reasoning that animated the law prior to Katz. Certainly, this explanation could provide an account of the failure of the Court's precedents to live up to the promise of Katz, a failure that is acknowledged by both supporters of and detractors from the privacy approach. (15)

    On the other hand, it seems peculiar that the Court would pursue a property-based approach to the Fourth Amendment, one that it had previously embraced, and simultaneously pay lip service to a privacy-based approach that may--as Kerr suggests (16)--not even be necessary to the Katz decision itself. If the Court were truly interested in applying the Fourth Amendment only to property it could easily have said so and thereby pursued its agenda openly.

    As Kerr acknowledges, the Court does sometimes decide cases in a manner that seems to reflect its consideration of privacy rather than property concerns. (17) As Kerr notes, though, some of the cases protecting (or finding no reasonable expectation of) privacy are also equally defensible on property grounds (18)--but this should come as no surprise. There has long been significant overlap between property rights and reasonable expectations of privacy. Privacy is one of the things that people value about private property. We cherish the right to exclude others not only from using our privately owned (or rented) spaces, but also from occupying and observing us within our private spaces. For instance, to avoid being observed while engaged in private activities (or to be free of observation even when they have no particular private activity to pursue), people can enter their homes and shut the door. People can hide personal items in their houses or cars or hotel rooms and thereby prevent others from knowing of those items. Protecting property, in other words, has in the past largely encompassed protecting privacy as well, and it is thus misleading to characterize the Fourth Amendment, textually or historically, as relevant to property but not to privacy.

    As Kerr shows, however, new technology unmoors privacy from property. Now threats to privacy can arise without in any way implicating rights to private property. Intercepting email communications, utilizing thermal detection devices, and applying my hypothetical brain-reader device all share in common the attribute of leaving traditional property rights untouched. No physical trespass need occur. But does that mean that the Fourth Amendment--drafted and ratified in a simpler time, when the overlap between invasions of property and invasions of privacy was more complete--has no bearing on these activities? To the extent that original understanding bears on constitutional law, it is sensible to attribute a concern about privacy to the founding generation and to the text of the Fourth Amendment itself.

    In the late eighteenth century, someone who cared deeply about privacy could secure its effective protection by writing an amendment that guaranteed the people a robust right of security in their houses, papers, and effects. Such an amendment would automatically cover privacy interests as well. In a world where privacy and property were so intimately linked, it would have seemed unnecessary to craft a separate protection for privacy per se, particularly when the Fourth Amendment includes a right of security in one's "person"--an extension beyond contemporary...

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