Fourth Amendment Privacy Interests

Article excerpt

I. INTRODUCTION

Is it possible to incorporate a serious concern for privacy into Fourth Amendment (1) jurisprudence? Even before the terrorist attacks on America, the question was a pertinent one; in the aftermath, it has become even more so. Fourth Amendment case law is of course grounded in an explicit concern for reasonable expectations of privacy. (2) But given a long line of decisions rendered prior to the attacks, one could hardly say that the Supreme Court has shown a serious concern for privacy. The Court, for example, has held that individuals do not have any Fourth Amendment privacy interests in their bank records, (3) in the phone numbers they dial, (4) or in freedom from low-flying surveillance of their backyards. (5) Moreover, by the Court's analysis, even our garbage places us at risk. If someone wraps her garbage carefully in an opaque bag and places the bag on the street, that person, the Court has held, cannot expect the police to refrain from inspecting it to find out what's going on in her home. (6)

Clearly, the Court has parsed the concept of privacy as thinly as possible. It has expressed concern for residential privacy (7)--but has allowed police helicopters to conduct surveillance of backyards. (8) It has expressed concern for the privacy of phone conversations (9)--but has said people have no privacy interest in the numbers they dial. (10) Whether--or how much--terrorism's arrival in America will influence future privacy jurisprudence is hard to say, but it does at least seem clear that even before its advent the Court did not take privacy seriously as a Fourth Amendment value. My question at the outset, though, was not directly concerned with Supreme Court rulings. Rather, I asked whether it is possible to incorporate a serious concern for privacy into Fourth Amendment jurisprudence. In this Article, I argue that it is. But a cogent argument can be advanced to the contrary, an argument that requires special attention given the challenge that police work poses for privacy interests.

The core features of this counterargument are easy to grasp. Privacy norms require people to exercise forbearance in everyday life: they require people not to act on their curiosity about their neighbors and officemates, not to encourage third-party confidences, not to snoop through incoming mail, and so on. But the police, it could be contended, must be exempted from these norms. This exemption is essential for the investigation of what the Court has called "ordinary criminal wrongdoing." (11) It is wholly indispensable, one could continue, for police work on what the Court has called "special governmental needs" (12) (the investigation of terrorism quite clearly comes under this heading). Police officers, it could be conceded, must avoid egregious violations of privacy norms. Nothing more than this should be expected of them if they are to perform their function effectively.

Indeed, one could further argue that the Supreme Court's privacy jurisprudence is admirable precisely because it draws the line here. The central principle of Fourth Amendment case law, it could be maintained, is that the police cannot engage in egregious privacy violations--for example, they must respect the privacy of the home (13) and personal belongings carried outside the home. (14) On the other hand, the corollary principle implicit in the case law is that the police are otherwise free to gather information about people--and so they can use helicopters to hover over backyards, (15) can sift through people s garbage, (16) and so on. If undertaken by a layperson, the Court's defender would say, these activities would be called "snooping." When undertaken by the police, the defender might continue, the same activities should be endorsed as sound law enforcement practices.

Because it is too early to tell what effect, if any, the investigation of terrorism will have on privacy jurisprudence, (17) I devote the bulk of this Article not to the special problems that will arise in the aftermath of the attacks on New York and Washington, but to an examination of the argument, outlined above, as applied to police investigation of ordinary criminal wrongdoing. …