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What is a reasonable expectation of privacy?

The Fourth Amendment states that the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, SHALL NOT BE violated.”  Yet that is exactly what is happening today, specifically in regards to electronic communications.  Today, the major question looming over much of our private electronic communication is what expectation of privacy we hold in it.

Since the birth of the Republic, the Supreme Court and the American people viewed the Fourth Amendment as a property interest right.  The thinking is that along with ownership rights in property, comes other rights as well, such as a freedom from intrusion.

As technology progressed, people began to own property that wasn’t tangible and thinking on Fourth Amendment protections matured.  Justice Brandeis, in Olmstead v. U.S., dissented from the majority’s holding that a wiretap physically attached to telephone wires on public property was not a search because there was no physical invasion of the office.  He argued that the Fourth Amendment prohibited “every unjustifiable intrusion by the Government upon the privacy of the individual.”

Years later, Justice Harlan, in a concurrence took this approach a step backwards, essentially butchering it.  Rather than viewing the Fourth Amendment protection as expanding, he wanted to determine whether each citizen had a “reasonable expectation of privacy.”  This essentially narrowed much of the relevant legal analysis.

Today, when courts are testing the constitutionality of endless types of government intrusions on privacy, they ask whether the individual had a subjective expectation of privacy and secondly, whether that expectation is reasonable.  The question the court essentially asks is beyond silly.  The inalienable rights view that our rights come from a higher power has been replaced by a more post-modern analysis.  The court judges whether the individual’s actual expectation of privacy is one that society is objectively “prepared to recognize as reasonable.”

Thus, for forty years, the Court has gone on a rampage, with a majority of five people pointing out what property warrants a reasonable expectation of privacy and what does not.

In Smith v. Maryland, the Court held that citizens do not have a privacy interest in the numbers they dial on their phones, but possibly do in the contents of the conversation.  The Court opined that an individual does not have a reasonable expectation of privacy in information voluntarily given to a third party.

In United States v. Miller, the Court held that a search did not occur when the government obtained a customer’s highly private bank account information without a warrant.  The same was true of the outside of mail envelopes.

In Kyllo v. U.S., the Court held that the government couldn’t use a thermal imaging device to spy on the inside of citizen’s homes, the main reason was that residents had a reasonable expectation of privacy against intrusions like thermal imaging, because no one expects that to happen to them.

The problem with many of these modern cases is twofold.  First, it is arbitrary.  Five elderly people who are much less likely to make new technologies a part of their life can now declare what is reasonable and what is unreasonable.  People under forty are connected to their smart phones like it is an extension of their brain.  Most people above sixty treat smartphones like landlines, turning them off and on when needed and frequently leaving them at home or out of reach, and rarely using these devices for anything outside of casual communications.  Reasonableness is relative to who is being asked and putting a room full of Ivy League elderly folks in a room isn’t going to reflect accurately on how the culture views technology.

Second, the reasonable expectation of privacy test is one that follows technology trends rather than drawing a privacy law in the sand.  As technology becomes more pervasive, SCOTUS expects American citizens to have more of an assumption or expectation that the Fourth Amendment will not protect them.

This is inherently dangerous.  As facebook and google gradually encroach on our concepts of freedom of information and privacy, the courts say that these private companies have the power to erode our freedoms without law through our decreased expectation.  As government schools fail to educate our children on the rights that have been given to them as their birthright, our rights erode.  As the expectation goes, so goes our rights.

Now, Congress is trying to encroach on internet search history while the executive branch is regularly seeking email records and there is also text message technology attack.  If we want to have any protection left in the way that our generation communicates, we need to start standing up and demanding that the mode of communication or property does not matter.  It is the right of the people that makes the difference.  All communications should be viewed as broadly included under the Fourth Amendment’s warrant requirement without consideration to subjective or changing cultural opinions.

A special thanks Spencer Cady for his helpful article, Reconciling Privacy with Progress

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