SEARCH WARS: Return of the Judiciary

EPISODE III OF III

The last two articles in this trilogy have posed and answered the following question: If the U.S. Supreme Court were inclined to re-define privacy, in whole or in part, for purposes of determining when government action constitutes a "search" under the Fourth Amendment, the first article asked, what other definition might it use?

The court could define privacy, the second article replied, as the right to keep private the intimate details that define who we are as individuals - that is, our personhood.

Whereas the first two articles looked at the present and the past, respectively, this article looks to the future by asking how workable a personhood-based approach to privacy might be.

Whether it is a good idea to redefine privacy as the protection of personhood may turn on three questions: (1) How does this new definition square with the current precedent (or, for those of you who see the world through Dark Side-colored glasses, how much precedent might it overturn)?; (2) How does the new definition square with the policies underlying the Fourth Amendment?; and (3) Is a personhood-based definition otherwise desirable, or does it create more problems than it solves?

Defining a "search" as the acquisition of intimate details that, in the aggregate, reveal the so-called "privacies of life" would leave more recent Fourth Amendment precedent intact, but might lead to the reversal of some older cases - at least in the areas to which the Supreme Court would apply this new definition.

The "second majority" in United States v. Jones, 565 U.S. 400 (2012), formed by Justice Samuel Alito's and Justice Sonia Sotomayor's opinions, as well as the majority opinion in Riley v. California, 134 S. Ct. 2473 (2014), rested explicitly on the determination that the government's acquisition of intimate details about a person - their every movement in Jones and the data accessible through their cellphones in Riley - constitute a search that requires a warrant. These decisions seemed to rest implicitly on a personhood notion of privacy. Indeed, Riley seemingly rejected the prior secrecy-based definition of privacy when it acknowledged - and then ignored - the fact that much of the information accessible through a cellphone is housed by third parties in the "cloud." Riley, at 2491.

The cases that might be in danger of obsolescence are those holding that the simple act of revealing information to a third party, without more, obliterates the Fourth Amendment's protections. Greenwood v. California, 486 U.S. 35 (1988), the case holding that there is no reasonable expectation of privacy in trash placed curbside, illustrates this point. As Justice William Brennan noted in his dissent, "[a] single bag of trash testifies eloquently to the eating, reading and recreational habits of the person who produced it" and "harbors telling evidence of the 'intimate activity associated with the "sanctity of a man's home and the privacies of life."'" Id. at 50. If the Fourth Amendment protects the acquisition of intimate details, it would likely cover trash if the amount collected revealed sufficient details to reconstruct (and thereby reveal) the defendant's personhood. And the same might go for other information, such as the banking records at issue in United States v. Miller, 425 U.S. 435 (1976), and the dialed telephone numbers at issue in Smith v. Maryland, 442 U.S. 735 (1979). Because secrecy would no longer be the test, the disclosure of information to these third parties - particularly when such disclosure is required "in the course of carrying out mundane tasks," Jones, at 417 (Sotomayor, J., concurring) - would no longer by itself negate application of the Fourth Amendment. Instead, a court would have to examine the quantity of information obtained and assess whether it reveals enough details to invade the defendant's personhood.

Under a personhood definition, the Fourth Amendment would continue to protect intrusions into the home where, as the Supreme Court noted in Kyllo v. United States, 533 U.S. 27 (2001), "all details are intimate details." It would also continue to apply to the acquisition of information from our bodies. See, e.g., Schmerber v. California, 384 U.S. 757, 767 (1966) (blood draw); Maryland v. King, 133 S. Ct. 1958, 1968-69 (2013) (buccal swab for DNA sample). Our bodies are the physical embodiment of our personhood because our bodies reveal not only the very DNA that defines who each of us is on a cellular level, but also intimate details about what we have done with our bodies - from drug and alcohol use to sexual activity to many things in between. What is more, the plain language of the Fourth Amendment secures our "persons" and that ostensibly includes our bodies.

Defining privacy as the protection of personhood was described in the last article, and seems to square with the policies underlying the Fourth Amendment, and particularly those policies it shares with the Fifth Amendment's privilege against self-incrimination.

That leaves the question of practicality for last. Defining privacy by the acquisition of intimate details may raise three questions that the courts would almost immediately need to address.

First, when is a person's privacy interest in their personhood triggered? The threat to personhood stems from the aggregation of intimate details that paint the portrait of who we are. A single dab of paint is not likely to be enough. Neither are a few strokes. This is likely why Jones' "second majority" would require a warrant for "longer term GPS monitoring," but not all GPS monitoring. Jones, at 430. But where exactly is that line?

Second, how does a person waive her right of privacy in her personhood? As touched on above, disclosure to a third party would certainly not be enough by itself. Such disclosures are a fact of life for anyone who uses a phone, accesses the internet, drives a car with a GPS-enabled service plan, and the list goes on. But a person who voluntarily posts to Facebook, makes daily tweets about his views, or blogs about her interests has mostly likely waived his or her right to privacy over the intimate details revealed in those postings, tweets and blogs. Is the dividing line to be drawn at a person's affirmative acts, or somewhere else? Is it enough to click a consent-to-disclosure waiver form as a term of use, or is something even more affirmative required?

Third, who has standing to object under this new definition of privacy? Most assuredly, a person could object to the acquisition of intimate details about himself. Can he object to the acquisition of details about his spouse? Does it depend on from whom the government seeks to acquire that information, and whether the person has some right to control the information flowing from that source?

How the Supreme Court answers these questions will have a very real impact on who regulates law enforcement. When the court previously ruled that disclosure to telephone companies and others vitiated any Fourth Amendment protection, Congress stepped into that void and enacted statutes - such as the Electronic Communications Privacy Act - to regulate what procedures law enforcement must follow to obtain this information. If, under a personhood-based definition, disclosure is not enough to vitiate Fourth Amendment protection (as Justice Sotomayor suggests in her Jones concurrence), then the acquisition of some of this information could constitute a "search" under the Fourth Amendment and, to that extent, the courts would get back into the business of regulating such searches as a matter of constitutional jurisprudence.

In sum, each of the disturbances in the Fourth Amendment discussed in these articles has come about when the Supreme Court has tried to apply the 18th century's Fourth Amendment to the 20th and 21st centuries' technologies.

Are technology and privacy on an inevitable collision course? Or can they be reconciled in a way that honors the animating force of the Fourth Amendment from long ago but remains flexible enough to accommodate new technologies that are still far, far away?

If you were hoping for definitive answers to these questions, alas, these were not the articles you were looking for.