12 Mar Security vs. privacy? Reinterpreting the Fourth Amendment
Ars Technica, By Julian Sanchez, March 11, 2009
If you devote a sizable chunk of your time to writing about surveillance, you see grim predictions about “the end of privacy” bandied about with a numbing regularity—hell, I’ve got at least two books by that title on my shelf right now. Which may be why it took me a while to get around to Yale law prof Jed Rubenfeld’s recent article “The End of Privacy” in the Stanford Law Review. Well, mea maxima culpa: Rubenfeld’s essay is not another catalog of privacy threats, but rather a provocative reexamination of the meaning of the Fourth Amendment—one that manages to be simultaneously radical (in the sense of “going to the root”), novel, and plausible in a way I would not have thought possible so late in the game. Rubenfeld’s big apple-to-the-noggin idea is this: mainstream jurisprudence regards the Fourth Amendment as protecting an individual right to “privacy”—which in the late 20th century came to mean the individual’s “reasonable expectation of privacy”—with courts tasked with “balancing” this against the competing value of security. This, the good professor argues, is basically backwards: the Fourth Amendment explicitly protects the “security” of our personal lives. Excavating a neglected 17th and 18th century conception of “security” leads to a new reading that both avoids well-known internal problems with the “reasonable expectation” view and helps us grapple with the thorny privacy challenges posed by new technologies. The received view of the Fourth Amendment dates from the seminal 1967 case Katz v. United States. With the advent of the telephone—and the ability to tap it—the Supreme Court recognized that the old property-centric reading that wedded “search and seizure” to physical trespass was no longer tenable. Technology had made it too easy to intrude upon people’s personal lives without intruding on their property. Hence the new doctrine that the Fourth Amendment “protects people, not places,” and the substitution of “reasonable expectations” for property rights as the defining element of a government “search.” To summarize, very crudely, an extended and incisive argument, Rubenfeld reviews the familiar objections that this standard is either circular (what the government does affects expectations) or indeterminate (our broader social expectations of privacy are highly role- and context-dependent) and concludes that courts have attempted to navigate these shoals by tacitly relying on what he dubs the “Stranger Principle.” That is, the private is what we would not disclose to a perfect stranger. A corollary to this principle is the “third party doctrine,” which we see taking shape in United States v. Miller and Smith v. Maryland: what you do disclose to strangers is not private. There is, as Rubenfeld notes, a practical problem here: if we take this doctrine seriously, the Katz holding is far too broad, and only our communications with intimates should be immune to wiretap. But he argues that this is merely symptomatic of a deeper problem: owing in large part to the influence of a seminal essay by Samuel Warren and Louis Brandeis, modern courts have “privatized” the Fourth Amendment, interpreting it as protecting a broad right to be left alone. On this reading, the government is just one more nosy neighbor, subject to the same limitations as anyone else, and for the same reasons. This, Rubenfeld argues, does violence to the Framers’ concern with the specific dangers of government intrusion.