Skip to main content
Menu

Main navigation

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact
    LOADING...
  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit
    LOADING...
  • Publications
    • Studies
    • Commentary
    • Books
    • Reviews and Journals
    • Public Filings
    LOADING...
  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving

Issues

  • Constitution and Law
    • Constitutional Law
    • Criminal Justice
    • Free Speech and Civil Liberties
  • Economics
    • Banking and Finance
    • Monetary Policy
    • Regulation
    • Tax and Budget Policy
  • Politics and Society
    • Education
    • Government and Politics
    • Health Care
    • Poverty and Social Welfare
    • Technology and Privacy
  • International
    • Defense and Foreign Policy
    • Global Freedom
    • Immigration
    • Trade Policy
Live Now

Blog


  • Blog Home
  • RSS

Email Signup

Sign up to have blog posts delivered straight to your inbox!

Topics
  • Banking and Finance
  • Constitutional Law
  • Criminal Justice
  • Defense and Foreign Policy
  • Education
  • Free Speech and Civil Liberties
  • Global Freedom
  • Government and Politics
  • Health Care
  • Immigration
  • Monetary Policy
  • Poverty and Social Welfare
  • Regulation
  • Tax and Budget Policy
  • Technology and Privacy
  • Trade Policy
Archives
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • October 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • October 2010
  • September 2010
  • August 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • November 2009
  • October 2009
  • September 2009
  • August 2009
  • July 2009
  • June 2009
  • May 2009
  • April 2009
  • March 2009
  • February 2009
  • January 2009
  • December 2008
  • November 2008
  • October 2008
  • September 2008
  • August 2008
  • July 2008
  • June 2008
  • May 2008
  • April 2008
  • March 2008
  • February 2008
  • January 2008
  • December 2007
  • November 2007
  • October 2007
  • September 2007
  • August 2007
  • July 2007
  • June 2007
  • May 2007
  • April 2007
  • March 2007
  • February 2007
  • January 2007
  • December 2006
  • November 2006
  • October 2006
  • September 2006
  • August 2006
  • July 2006
  • June 2006
  • May 2006
  • April 2006
  • Show More
September 19, 2013 2:13PM

To Administer the Fourth Amendment, Recognize Reasonable Searches and Seizures

By Jim Harper

SHARE

Over the last few years, I've dedicated more and more effort to righting the Fourth Amendment, which has been weakened over decades by doctrines that don't measure up to the times.

You can see my efforts and their evolution in my American University Law Review article, "Reforming Fourth Amendment Privacy Doctrine" (2008); Cato's brief to the Supreme Court in U.S. v. Jones (Oct. 2011), Cato's brief to the Supreme Court in Florida v. Jardines (July 2012); my Cato Supreme Court Review article, "Escaping Fourth Amendment Doctrine After Jones: Physics, Law, and Privacy Protection (Sept. 2012); my Cato Policy Report article, "U.S. v. Jones: Fourth Amendment Law at a Crossroads" (Sept./Oct. 2012); and, most recently, Cato's brief to the Supreme Court in In re: EPIC (August 2013).

Today, I had the opportunity to expound on my thinking at a National Press Club event hosted by the Electronic Privacy Information Center to discuss their challenge to the National Security Agency's bulk telephone data collection. Moderator Jeffrey Rosen, recently named President and CEO of the National Constitution Center, alloted me a good deal of time, and we discussed things a little more after the session. I'm ever-sharpening my thinking about how the Fourth Amendment should operate, and how to talk about it.

The starting point is this: The "reasonable expectation of privacy" doctrine, which grew out of Katz v. United States (1967), is a failure. Courts almost never actually investigate whether a subjective "expectation of privacy" is objectively reasonable, and they're in no position to make broad societal pronouncements on the latter question anyway. The doctrine is not a product of the Katz majority, it's worth noting, which focused on the steps Katz had taken to conceal the sound of his voice---steps upended by government agents' placement of a bug in a phone booth without a warrant.

The Fourth Amendment should be administered as a law once again. To administer a law protecting "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," you'd ask four questions:

1. Was there a Seizure? (Many searches begin with seizure, so it makes sense to ask about seizures first.)

This goes to the question whether government agents invaded a property right. Unconsented and unwarranted entry into one's home (or onto its nearby surroundings, the "curtilege") is the classic Fourth Amendment violation. Given the directed looking that accompanies that property violation, courts often refer to it only as a "search." But they don't always collapse search and seizure. In Terry v. Ohio, for example, the court recognized the neat distinction between grabbing a suspect and turning him around (a seizure) and then patting him down (a search). In the Jones case, Justice Scalia clearly fixed on the property invasion in affixing a GPS device to a car. His majority opinion collapsed that small seizure with the search it facilitated and talked about it as a "search." But it started with the small seizure of property that converted Jones's car to the purposes of the government in transporting their tracking device.

Seizure is in play with digital data reflecting our communications. In our In re: EPIC brief, Randy Barnett and I wrote about the seizure that occurs when the government requires telecommunications providers to turn over data. It doesn't matter what the government does next. The seizure must satisfy the Fourth Amendment.

Property and contract principles can and should protect communications under the Fourth Amendment. In the 1929 Olmstead decision, which wrongly approved warrantless wiretaps, Justice Butler dissented, pointing out that "contracts between telephone companies and users contemplate the private use" of telephone facilities. "The communications belong to the parties between whom they pass," Justice Butler said. That's true of modern communications as well. Some overlook this, treating contract law as a sort of legal also-ran. Explicit and implied contract terms promise us privacy. Courts and commentators should recognize that.

2. Was there a Search?

As I noted, seizures and searches often go hand in hand. But sometimes there are free-standing searches. These, too, must comport with the Fourth Amendment.

The best example is from Kyllo v. United States (2001), in which government agents used a thermal imager to observe abnormally high heat on the side of a home that they suspected of housing a marijuana growing operation. They did not enter onto the property but used their high-tech device to convert invisible radiation into visible images of the home's emanations. They were "looking for or seeking out that which is otherwise concealed from view"---the definition of "search" from Black's Law Dictionary.

Think of "search" as the exact opposite of "plain view," the doctrine holding that law enforcement are entitled to note what they observe from lawful vantage points. It's okay to look at stuff. And it's a search when you use special efforts or outré technology to observe things law and physics otherwise didn't permit you to see.

3. Was the thing seized or searched a person, house, paper, or effect?

There are a few things law enforcement might seize or search that aren't protected by the Fourth Amendment---one's farmland or unimproved vacation property, for example. But digitization is often just the rendering of constitutional papers and effects in a different format, which should not strip them of protection.

4. Was the Seizure or Search Reasonable?

The "reasonable expectation of privacy" test collapses many questions together, reasoning backwards, actually, from expectations to the existence of searches. Under that doctrine, a "search" is almost always unreasonable because it defeats a reasonable expectation.  But the right way to look at things is to follow the terms of the Fourth Amendment: See if there was a seizure. See if there was a search. And if there was either, decide if it was reasonable. This requires the contemplation of the reasonable seizure or search.

Posit a law enforcement officer walking down the street. She trips on crack in the sidewalk and reaches out to steady herself on a nearby automobile, leaving a noticeable smudge. The car was not hers to use this way. But for an instant, she converted the car to her purposes. It's a small but real seizure of another's private property.

Our instinct in such a case is to say, "that was no seizure." The better way to think of it is as an entirely reasonable seizure. Were she to have converted the car to her purposes in a different way---attaching a GPS device to it, for example, so as to track its movements---this is not reasonable without a warrant supported by probable cause.

The same goes for reasonable searching. Say our law enforcement officer is at the beach. Espying odd behavior---maybe an incipient fist-fight---off in the direction of the wharf, she raises her binoculars to her eyes and looks at what is happening there. That's the kind of directed looking that qualifies as a search, but the existence of something "odd" and her use of a relatively ordinary technology place the search well within the bounds of reasonableness. In a second scenario where a government agent sets up on a bluff and uses a military-grade instrument to read over a random beachgoer's shoulder, that's unreasonable searching.

There is certainly judging to be done in close Fourth Amendment cases. There's no escape from that. But there's a better way to administer the Fourth Amendment than the "reasonable expectation of privacy" test. That is to use the ordinary meanings of the words in the Fourth Amendment, to employ relatively familiar and settled property and contract concepts, and to ask judges to strike balances based on the facts in individual cases rather than make sweeping pronouncements about privacy.

Related Tags
Constitutional Law, Technology and Privacy, Robert A. Levy Center for Constitutional Studies

Stay Connected to Cato

Sign up for the newsletter to receive periodic updates on Cato research, events, and publications.

View All Newsletters

1000 Massachusetts Ave, NW,
Washington, DC 20001-5403
(202) 842-0200
Contact Us
Privacy

Footer 1

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact

Footer 2

  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit

Footer 3

  • Publications
    • Books
    • Cato Journal
    • Regulation
    • Cato Policy Report
    • Cato Supreme Court Review
    • Cato’s Letter
    • Human Freedom Index
    • Economic Freedom of the World
    • Cato Handbook for Policymakers

Footer 4

  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving
Also from Cato Institute:
Libertarianism.org
|
Humanprogress.org
|
Downsizinggovernment.org