The best way to learn what constitutional lawyers do is to read their arguments about particular court cases. Give it a shot here with TIP alum and instructor Don Donelson’s opinion on recent cases concerning the Fourth Amendment and the right to privacy. All views expressed below are Donelson’s and are not representative of Duke TIP.
It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. 1
The right to privacy—a fundamental liberty guaranteed to us all by the Constitution—is at the crux of a centuries-old debate on how to delicately balance the often competing interests of security and liberty. The question of when the government may search and seize a person’s “houses, papers, and effects” [2] is embedded in the core identity of our nation; indeed, John Adams wrote that this conflict was “the first scene of the first act” of the American Revolution. [3]
For most of our nation’s history, the debate about privacy was tied to individual property rights: the government could not set foot on a person’s property without the individual’s permission or a warrant. This was an efficient and tidy formulation; it captured well the desired balance between the competing interests of security and privacy. But over time the government began utilizing methods that enabled it to reach deeply into citizens’ private lives without ever prying open a door, rifling through a drawer, or emptying out a purse. The culprit that enabled these new tactics: technology.
The Supreme Court first took a stand against government use of technology to encroach on citizen privacy in 1967 when it threw out evidence that the FBI obtained by bugging the outside of a public phone booth to record the conversations of Charles Katz, whom the FBI was investigating for illegal gambling. Justice Potter Stewart recognized in Katz v. United States that while assuming that an unreasonable search would always entail the government trespassing on property was sufficient to protect the right to privacy in 1792, this assumption in 1967 left the citizenry at the mercy of the exponential advance of technology. In his majority opinion, Justice Stewart wrote that “The Fourth Amendment protects people, not places” and a new interpretation was born that placed privacy, not property, at the heart of the Fourth Amendment. [4]
The battle between the government’s desire to create a secure society and an individual’s right to privacy has only intensified since Katz. The courts have adjudicated cases involving government use of technology ranging from flying helicopters over homes to take photographs from above [5], to using heat vision technology to detect marijuana growing lamps inside a home [6], to attaching a GPS tracker to the underbelly of a Jeep Grand Cherokee. [7]
The speed with which technology has advanced is best evidenced by the 2014 Supreme Court case of Riley v. California. [8] In Riley, the Supreme Court grappled with the privacy implications of smart phones, technology that was largely inconceivable for many decades after Katz. The court was forced to weigh the centuries-old interest of the government in searching lawfully arrested persons and their belongings with them at the time of arrest against the harm to the rights of the individual. This practice has been historically justified as the government’s need to both secure evidence and protect officers outweighs the slight increase in harm such a search inflicts on someone whose rights have already been significantly harmed by being placed under a lawful arrest.
This judicially approved practice of searching a person and their belongings whenever they may be arrested typically meant little more than a pat-down of their clothing and the occasional inspection of a handful of notes and photos that might have been found in a wallet or purse. But putting a smartphone in virtually every adult’s pocket shifts the paradigm. Chief Justice John Roberts recognized the immense privacy implications of allowing police to search a device with the capacity to reveal details of our private lives from photographs, to complete records of correspondence, to apps that reveal our health status, religious beliefs, political affiliations, and much more. The 2016 person with a cell phone in pocket is tantamount to individuals in 1792 carrying on about their daily lives with horse and buggy in tow, filled with the sum total of their belongings from the mundane to the intimate. Roberts’ answer to the government concerning its desire to search cell phones of arrested persons was, thus, quite simple: “get a warrant.” [9]
The battle between security and privacy was the genesis for the American Revolution and took a major turn in the last fifty years, but it continues to rage. It will not stop with smartphones. Every decision that favors privacy “[impacts] the ability of law enforcement to combat crime.” [10] The courts recognize that “privacy has a cost.” [11] That cost is decreased security. What cost should we be willing to bear to secure the right to privacy? What technology currently inconceivable to us will spawn the next evolution in government tactics that reduce our privacy in the name of greater security?
Don Donelson is a lecturer in business law at the University of Miami. He received his JD from Wake Forest University in 2008. He is also a TIP alumnus and is currently teaching at Duke TIP’s Summer Studies Program.
[1] Kyllo v. United States, 533 U.S. 27 (2001) ^
[2] U.S. Const. amend. IV ^
[3] 10 Works of John Adams 217 (C. Adams Ed. 1856) ^
[4] Katz v. United States, 389 U.S. 347, 351 (1967) ^
[5] Florida v. Riley, 484 U.S. 445 (1989) ^
[6] Kyllo, 533 U.S. 27 ^
[7] United States v. Jones, 565 U.S. ___ (2012) ^
[8] Riley v. California, 573 U.S. ___ (2014) ^
[9] Riley, 573 at 28 ^
[10] Riley, 573 at 25 ^
[11] Id. ^