September 13, 2010 3:56PM

Is the Fourth Amendment Really About ‘Privacy’?

Back in June, the American Civil Liberties Union launched a new Web hub called Spy Files, which promises to be an invaluable resource for those of us who make a point of watching the watchers. Probably the most interesting document available on the site at launch was a thorough state by state survey of law enforcement surveillance of protected political and religious association over the past decade. They rounded up a truly disturbing number of instances, spanning 33 states, just from press reports, of undercover officers infiltrating anti-war groups and mosques without obvious grounds to suspect wrongdoing. 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.

Following the exposure of COINTELPRO and a spate of related intelligence scandals uncovered by Senate investigations during the 70s, the latitude of federal investigators to covertly infiltrate domestic groups was somewhat constrained by Executive Order 12333, signed by President Reagan in 1981. But state and local law enforcement often have a relatively free hand, because under the modern understanding of the Fourth Amendment, the Constitution is concerned only government actions that violate a "reasonable expectation of privacy," which courts have generally understood as limited to the exposure of what was previously secret. When we entrust sensitive records to third parties—be they banks, Internet Service Providers, or other members of our churches or political organizations—we "assume the risk" that they will reveal the information to the government, according to the courts' logic, and so waive our expectation of privacy.

Legal scholars have long been critical of the reasoning behind this "third party doctrine," in particular the "assumption of risk" argument, but traditionally they've accepted the basic frame that the Fourth Amendment should fundamentally be understood as concerned with protecting "privacy"—though the term itself does not appear in the Constitution—and argued that the court has interpreted the concept too narrowly. Yet a growing number of investigative techniques—from GPS location tracking to DNA analysis—allow the government to conduct an intuitively troubling degree of monitoring, potentially on a vast scale, by targeting information that is at least in some sense "public."

One way of dealing with this within the current paradigm is to seek to draw more nuanced distinctions between dimensions of privacy, which was the approach I took in a recent post on long-term GPS monitoring. Along similar lines, one might try to argue, say, that people reasonably expect their genetic profiles to remain private even if such a profile could in principle be extrapolated from residual DNA on a fork "abandoned" in a public restaurant. The key move here is to argue that "publicity" is not transitive: Private (and so protected) facts may be extrapolated from the aggregation of individually public events or from high-tech analysis of public objects or information. As I argued in the previous post, Kyllo v. U.S. can be read to support this principle.

Several fascinating recent papers, however, have instead argued that the root of the trouble with current Fourth Amendment doctrine is the very idea that the prohibition on "unreasonable searches" must be viewed primarily through the lens of privacy. If we consider public surveillance camera networks, or some recent cases involving "dragnet" location tracking by law enforcement, I think we find that whatever intuitive unease we feel about the methods employed has less to do with a sense that the individual "right to privacy" of any particular person has been violated than with concerns about the government monitoring the citizenry as a whole in these ways. In his new paper "Fourth Amendment Pragmatism," Daniel Solove therefore argues for a radical remedy: We should dispense entirely with an analysis that treats the violation of a "reasonable expectation of privacy"  as the sine qua non of a Fourth Amendment "search," and instead "regulate whenever government information gathering creates problems of reasonable significance."

Solove's critique of the current approach is quite cogent: The "action" in Fourth Amendment jurisprudence, so to speak, overwhelmingly surrounds the threshold question of whether a particular investigative technique counts as a Fourth Amendment "search," and though the standard is supposed to be that "reasonable expectation of privacy," the Court's rulings on what falls within that ambit don't match up terribly well with people's actual expectations as revealed by the  limited empirical data we have. We end up with a largely binary system of regulation where (with a few exceptions) techniques classified as "searches" require the same full-blown probable cause warrant necessary to search a home—though the primary remedy for violations of the warrant requirement is the "exclusionary rule" prohibiting the introduction of improperly obtained evidence at criminal trial, which is not always the primary concern. Everything that doesn't count as a "search," on the other hand, is left wholly unregulated, at least by the federal Constitution—leaving our privacy in those contexts at the tender mercies of the Congress and state courts. As Solove argues, it would make more sense for the scope of the Fourth Amendment to be interpreted substantially more broadly, with the understanding that not every search rises to the level of requiring a full probable cause warrant to pass muster as "reasonable."

Yet Solove's proposed standard—"regulate whenever government information gathering creates problems of reasonable significance"—does not seem like much of a standard at all, and indeed, does not seem especially "pragmatic," in at least a couple of ways. First, whatever the theoretically best interpretive strategy might be, it seems awfully unrealistic to expect the courts to simply jettison half a century of Fourth Amendment precedent wholesale. Nor, if we think predictability is an important component of the "rule of law," would such a radical move be obviously desirable—though we could imagine a gradual transition to something closer to Solove's approach via a series of narrower incremental rulings. Second, this doesn't give lower courts much guidance when it comes town to decide cases involving particular sets of facts, either with respect to the scope question or the remedy question; it seems like an invitation to a national crazy-quilt of inconsistent judicial legislation. To understand what Solove means by "problems of reasonable significance," we have to turn to his brilliant and nuanced "Taxonomy of Privacy," which makes perceptive and subtle distinctions between a dizzying array different types of privacy harms. Nuance is certainly a scholarly virtue, but it's at best a mixed blessing in legal rules. Solove's schema is so sophisticated and complex that it seems bound to yield a wildly unpredictable series of ad hoc decisions based on a judge's idiosyncratic sense of how to "balance" a welter of incommensurable values. Solove anticipates this objection, but his reply—that Fourth Amendment jurisprudence is already a farrago largely unmoored from the text of the Constitution, so this wouldn't be any worse—is not exactly reassuring.

An alternative approach—more firmly anchored in the text of the Fourth Amendment, and yielding something more closely resembling a genuine standard—is offered by Yale's Jed Rubenfeld in his article "The End of Privacy," which I wrote about last year. Rubenfeld's Big Idea is that we have ignored the crucial role of "security" in the Fourth Amendment. We're now accustomed to arguments over the "tradeoff" between the competing values of "security" and the "privacy" protected by the Fourth Amendment, but by its own terms, the Fourth Amendment stipulates that "the right of the people to be secure...against unreasonable searches and seizures, shall not be violated." We tend to read this, in effect, as simply saying that the right against unreasonable searches and seizures shall not be violated—so that the words "people" and "secure" don't end up doing any real work. But as Rubenfeld notes, "security" was actually a significant legal concept in the minds of the Framers—something free people enjoyed by contrast with the insecurity generated by arbitrary and discretionary government power. Returning to the question of informants, consider the type of insecurity experienced by East Germans under the Stasi, as illustrated in the magnificent film The Lives of Others. The effect of that kind of total surveillance state was not limited to those who were actually being informed upon or wiretapped, because the terrifying reality was that you could never be sure. Any call might be recorded; any friend or colleague or lover might actually be on the payroll of the secret police. This knowledge could wreak havoc on interpersonal intimacy and chill potential dissent even for those whose individual privacy was never actually invaded.

To think of the Fourth Amendment this way—as not exclusively about privacy, but about "the right of the people to be secure"—is necessarily to take a more architectural view of its protections. But Rubenfeld offers something closer to an applicable test: 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. If it would not, we ask what restrictions—such as requiring a probable cause warrant or "specific and articulable facts"—would sufficiently narrow the method's application so as to leave reasonable citizens secure.

Rubenfeld's approach, to be sure, is not without its own problems. But as technology increasingly enables mass, population-level monitoring by government, often making use of information that is not absolutely secret and private (because, for instance, it has been turned over to an array of commercial entities, even if no one business has all the information) it may be necessary to move beyond a view of the Fourth Amendment as strictly concerned with an individual privacy right. My right to privacy, after all, is something that can be infringed by any old person—not merely by the government. On the currently dominant view, then, the government violates privacy (and the Fourth Amendment) just in case it performs actions that would be privacy violations if conducted by anyone. Yet the Framers had good reason to be particularly concerned with the social implications of government information gathering. Those concerns had less to do with "privacy" as such than with the structural balance between personal autonomy and state control—considerations that could stand to loom much larger in our thinking about the Fourth Amendment.