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Is the Fourth Amendment Really About “Privacy”?

September 13th, 2010 · 8 Comments

For those of you who aren’t reading Cato at Liberty (and why not??), I’ve got a longish post over there that looks at a couple of recent law review articles questioning whether it really makes sense to think about the Fourth Amendment primarily in terms of “privacy.” I find myself pretty sympathetic to the argument that looking at it exclusively through this lens misses a lot of the important interests the amendment ought to protect, and that we should see it more generally as a mechanism for regulating government information gathering, with the understanding that some of the problems with that information gathering are not most usefully analyzed under the rubric of “privacy invasions.”

Tags: Law · Privacy and Surveillance



8 responses so far ↓

  • 1 Pithlord // Sep 15, 2010 at 7:52 pm

    These approaches amount to outlawing investigation altogether. It is one thing to require law enforcement to have probable cause before doing something an ordinary citizen can’t do. But you would require law enforcement to have probable cause before acquiring publicly available information – which would lead to an infinite regress. All motivated on idiosyncratic “intuition” along with “road to serfdom” referenfes to East Germany.

  • 2 Julian Sanchez // Sep 15, 2010 at 8:13 pm

    If you go back to the post, you’ll notice I suggested (echoing Solove) that the courts should be more willing to broaden the scope of what counts as a Fourth Amendment “search” on the understanding that not all types of searches should be held to the probable cause standard in order to be deemed reasonable.

    Second, the reference to “The Lives of Others” was meant to illustrate a general point about “security” as distinguished from individual invasions of privacy, not to assert that we’re somehow on the cusp of living under a Stasi-like regime.

    Third, I certainly never said that there should be some kind of general prohibition on gathering publicly available information; I suggested that we should allow the possibility that *some* investigative techniques—and some types of broad architectures of surveillance, such as London-style citywide camera networks—could raise Fourth Amendment concerns without necessarily invading “privacy” as currently understood by the courts.

  • 3 sam // Sep 16, 2010 at 7:34 am

    I started to read your article at Cato, I came to this:

    ” In the aggregate, as the report itself notes, the effect is eerily reminiscent of the FBI’s infamous COINTELPRO operation, which targeted groups deemed “subversive” in the 1960s and 70s.”

    And that reminded me of this. I was living in Cambridge in the 60s and 70s. Antiwar Central. One of the larger antiwar groups in town was always planning something, a teachin, march, whatever. If you called them to get info on some activity, the person answering the phone, no matter who, would always say, “This is such and such against the war. This line is tapped. How may I help you?”

  • 4 sam // Sep 16, 2010 at 10:39 am

    I read the piece and I was much in agreement with it. It does strike me that Solove’s test has distinctly Kantian overtones (and describing the approach as “architectural” reinforces this). What he aruges (as you present it) is a kind of categorical imperative of search:

    Rather than asking whether an individual reasonable expectation of privacy has been violated, we ask whether people would remain secure in their liberties if a particular search method were pervasive.

    Do you know if Orin Kerr as ever discussed Solove’s suggestion?

  • 5 sam // Sep 16, 2010 at 11:51 am

    Nebbermine the Kerr question, google is your friend.

  • 6 Julian Sanchez // Sep 16, 2010 at 2:09 pm

    You’re thinking of Rubenfeld’s test, I think, and he does explicitly describe it as Kantian in the paper.

  • 7 sam // Sep 16, 2010 at 3:10 pm

    Right, I apologize to Mr Rubenfeld for not crediting correctly. And I did find these three papers (downloadable pdfs):

    Kerr: The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=421560)

    Solove: Fourth Amendment Codification and Professor Kerr’s Misguided Call for Judicial Deference (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=786266)

    Kerr: Congress, the Courts, and New Technologies: A Response to Professor Solove

    I don’t know yet if the Rubenfeld test is discussed by Orin. Haven’t gone through the papers yet.

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