Reviving the Fourth Amendment and American Privacy

I started working on privacy issues for the ACLU about five weeks before 9/11. What a wild ride it’s been for privacy since that terrible day. The privacy rights of Americans have come under a sustained assault that would have been hard to imagine in the languid days of August 2001. Since 9/11 we have seen two wars, a constant stream of revolutionary new technologies, greatly expanded powers for our security agencies, and a relentless political drumbeat pounding on the supposed need to give those agencies even more powers to peer into our lives without due process or meaningful oversight.

Underlying all this, however, is a looming problem that has little to do with 9/11: the fact that the Supreme Court’s interpretation of the Fourth Amendment has gone badly off track. With all the privacy battles I’ve been involved in over the last nine years, that constitutional problem has always hung over us, often underlying or worsening more particular privacy issues such as data mining or financial privacy.

Now, I’ve written a paper for the American Constitution Society on this: Crisis in Fourth Amendment Jurisprudence.

As I explain in the paper, the general consensus of a wide variety of commentators is that there are two principal problems with the Supreme Court’s Fourth Amendment jurisprudence:

• The “third party doctrine,” under which information shared with any third party loses all Fourth Amendment protection. Financial data held by your bank or medical records held by your doctor, for example, has been exposed to a “third party,” and under this doctrine you are deemed to have “given it up” and it is therefore stripped of Fourth Amendment protection.
• The emergence of a circular standard of “reasonable expectation of privacy,” under which Fourth Amendment protection only extends to those situations where an individual has an “expectation” of privacy that society is prepared to recognize as reasonable. But rapid changes in technology mean that expectations are fluid and often a reasonable person may sadly be forced to “expect” no privacy even though they want privacy and ought to have it. As a result of this approach, the Fourth Amendment as it is currently interpreted provides no protection against a wide array of intrusive searches.

What’s needed is a broad revival of the Fourth Amendment in American law.

I argue in the paper that there are several reasons to be hopeful that such a revival may be in the offing. First, there is a precedent for such a thing. Before World War I, the First Amendment was weak in much the way that the Fourth Amendment is now. People were being thrown in prison for writing letters to the editor opposing U.S. entry into the war, for example, and the Supreme Court was routinely (and unanimously) striking down free speech defenses in the face of expression that was deemed “contrary to the public welfare” as the authorities saw it. But after the war, the court began to change course, and eventually embraced the generally robust interpretation of the First Amendment that Americans benefit from today.

There are other sources we can look to as sources for change, including a vigorous line of Supreme Court dissents in key Fourth Amendment cases; jurisprudence in the states, many of which have rejected the Supreme Court’s approaches to privacy law; and the fact that both liberals and conservatives — including justices like Antonin Scalia and Clarence Thomas — have taken positions on privacy issues that suggests the possibility of broad coalitions in favor of repairing the Fourth Amendment.

Americans’ privacy rights are taking a beating, and the situation will only worsen without a robust Fourth Amendment to protect us. Of course, there is a limited amount that individuals can do to influence evolving Supreme Court doctrine, but the first step is to achieve a clear definition and widespread recognition of the problem.