« BACK  |  PRINT

RS

MEMBER DIARY

What does it mean to be secure in one’s person, papers and effects?

The Fourth Amendment requires the government to allow Americans to be secure in their person, papers and effects.  But what does secure mean?  Typically, Americans view their Constitutional guarantee of security in terms of secrecy.  So for example, Americans view the right against government intrusion as really a right to keep personal information secret.  But “the Fourth Amendment protects us from unjustified government actions that disturb our peace and tranquility, not only from those that interfere with secrecy.”[i] 

As Stephen Schulhofer puts it, the Fourth Amendment interest at play is peace of mind — free from government intrusion.[ii]  This is why an arrest warrant issued without probable cause violates our notions of the Fourth Amendment.  A warrant without probable cause is a violation of our security and tranquility, not our secrets.[iii] 

The Twenty-First Century has brought about the judicial fiction that people have either a reasonable or unreasonable expectation of privacy in their person, papers and effects.  But this begs the incorrect question.  People have different expectations of privacy in different circumstances, relationships and time periods. 

The idea that privacy means secrecy is too narrow even when we think only about personal information, like the contents of a journal.  Suppose I give you my diary and urge you to read it.  No one would think you are violating my privacy when you do so.  The reason is that privacy is not about the information itself, no matter how personal it may be.  Instead, this aspect of privacy – informational privacy – is about my right to control what other see, and in this example I have given you my permission.[iv] 

Privacy has less to do with the information we conceal from the world than with the close and trusted people that we determine to share our information with.  Thus, the Fourth Amendment right is not a right to privacy as much as it is a right to control one’s privacy.[v]  This is why a warrantless wiretap of a telephone call between a suspect and their friend is a violation of the Fourth Amendment even though the suspect chose to disclose the information to another.[vi] 

Schulhofer compares a policemen’s search of a suspect’s hotel room with the entrance of a cleaning person.  While there is an expectation of privacy that does not preclude the cleaning person from entering the hotel room, that same expectation would preclude the entrance of a police officer.  In fact, it is quite silly to assume that because the phone company has access to personal phone records, any person may have access to personal phone records.  Different standards apply in different relationships and citizens must learn to control access to personal information.  It isn’t a unmitigated privacy at play, but the personal control of one’s information that matters.  


[i] Schulhofer, Stephen J.; The Fourth Amendment in the Twenty-First Century: More Essential Than Ever; pg 7.

[ii] Schulhofer, Stephen J.; The Fourth Amendment in the Twenty-First Century: More Essential Than Ever; pg 7.

[iii] Schulhofer, Stephen J.; The Fourth Amendment in the Twenty-First Century: More Essential Than Ever; pg 7.

[iv] Schulhofer, Stephen J.; The Fourth Amendment in the Twenty-First Century: More Essential Than Ever; pg 8.

[v] Schulhofer, Stephen J.; The Fourth Amendment in the Twenty-First Century: More Essential Than Ever; pg 8.

[vi] Schulhofer, Stephen J.; The Fourth Amendment in the Twenty-First Century: More Essential Than Ever; pg 8.

Get Alerts