Advertisement

Privacy: A Personal Sphere, Not Home-Bound

  • Amitai Etzioni
Chapter
Part of the Palgrave Macmillan’s Studies in Cybercrime and Cybersecurity book series (PSCYBER)

Abstract

“[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” So stated the Supreme Court majority in Katz v. United States1 in 1969. This chapter builds on this statement and attempts to show that it has generally gone unheeded in Fourth Amendment case law since 1969, and that sweeping and significant technological advances mean that the statement is more valuable than ever.

Keywords

Public Space Legal Scholar Feminist Scholar Private Space Fourth Amendment 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Preview

Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.

Notes

  1. 2.
    Henry F. Fradella, Weston J. Morrow, Ryan G. Fischer, and Connie Ireland, “Quantifying Katz: Empirically Measuring ‘Reasonable Expectations of Privacy’ in the Fourth Amendment Context,” American Journal of Criminal Law 38, 3 (2011): 295.Google Scholar
  2. 5.
    William Cuddihy and B. Carmon Hardy, “A Man’s House Was Not His Castle: Origins of the Fourth Amendment to the United States Constitution,” The William and Mary Quarterly 37, 3 (July 1980): 371.CrossRefGoogle Scholar
  3. 6.
    Thomas K. Clancy, “The Framers’ Intent: John Adams, His Era, and the Fourth Amendment,” Indiana Law Journal 86, 3 (2011): 979–80, 1014.Google Scholar
  4. 7.
    Stephanie M. Stern, “The Inviolate Home: Housing Exceptionalism in the Fourth Amendment,” Cornell Law Review 95, 5 (July 2010): 924–26, 927.Google Scholar
  5. 9.
    For example, “In Steagald v. United States, the Court resolved an important fourth amendment issue by holding that, absent exigent circumstances or consent, a law enforcement officer may not legally search for the subject of an arrest warrant in the home of a third party without a search warrant.” G. Andrew Watson, “Fourth Amendment: Balancing the Interests in Third Party Home Arrests,” Journal of Criminal Law and Criminology 72, 4 (1981): 1263.CrossRefGoogle Scholar
  6. 11.
    “The greatest [Fourth Amendment] protection is given to a citizen’s residence.” David M. Stout, “Home Sweet Home?! Maybe Not for Parolees and Probationers When It Comes to Fourth Amendment Protection,” Kentucky Law Journal 95 (January 2006): 812.Google Scholar
  7. 12.
    See, to give but one example, Jordan C. Budd, “A Fourth Amendment for the Poor Alone: Subconstitutional Status and the Myth of the Inviolate Home,” Indiana Law Journal 85, 2 (2010): 360.Google Scholar
  8. 13.
    Cited in Thomas K. Clancy, “What Does the Fourth Amendment Protect: Property, Privacy, or Security?” Wake Forest Law Review 33, 2 (July 1998): 319.Google Scholar
  9. 15.
    Cited in Charles Hellman, “Secure in Their Houses? Fourth Amendment Rights at Public Housing Projects,” New York Law School Law Review 40, 1–2 (1995): 200.Google Scholar
  10. 17.
    Cited in Kristin M. Barone, “Through the Looking Glass of the Fourth Amendment: The Unintended Consequences of Search Reform Leads to a Technological Erosion of Security in the Home,” Loyola Journal of Public Interest Law 13, 1 (September 2011): 159.Google Scholar
  11. 20.
    Cited in William E. Mercantel, “Is It Hot in Here? The Eighth Circuit’s Reduction of Fourth Amendment Protections in the Home,” Missouri Law Review 73, 3 (2008): 888.Google Scholar
  12. 24.
    Matthew L. Zabel, “High-Tech Assault on the Castle: Warrantless Thermal Surveillance of Private Residences and the Fourth Amendment,” Northwestern University Law Review 90, 1 (1995): 273.Google Scholar
  13. 25.
    The first draft of the Fourth Amendment was written by James Madison, but it was based heavily on an earlier Massachusetts model created by Adams. Thomas K. Clancy, “The Framers’ Intent: John Adams, His Era, and the Fourth Amendment,” Indiana Law Journal 86, 3 (2011): 979–80, 982.Google Scholar
  14. 27.
    “In order to ascertain the nature of the proceedings intended by the Fourth Amendment to the Constitution under the terms ‘unreasonable searches and seizures,’ it is only necessary to recall the contemporary or then recent history of the controversies on the subject, both in this country and in England. The practice had obtained in the colonies of issuing writs of assistance to the revenue officers, empowering them, in their discretion, to search suspected places for smuggled goods.” Boyd v. United States (116 U.S. 616, 1886); “[The Fourth Amendment] arose from the harsh experience of householders having their doors hammered upon by magistrates and writ-bearing agents of the crown. Indeed, the Fourth Amendment is explainable only by the history and memory of such abuse.” Cuddihy and Hardy,,” 372. For a full history of the English practices that led to the colonial rejection of writs of assistance, see William Cuddihy, “Warrantless House-to-House Searches and Fourth Amendment Originalism: A Reply to Professor Davies,” Texas Tech Law Review 44, 4 (2012): 998. “Fourth Amendment: Search and Seizure,” Government Printing Office, October 1992, available at http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992–10-5.pdfGoogle Scholar
  15. 28.
    Emily Hickman, “Colonial Writs of Assistance,” The New England Quarterly 5, 1 (1932): 84.CrossRefGoogle Scholar
  16. 30.
    M. Jackson Jones, “The Fourth Amendment and Search Warrant Presentment: Is a Man’s House Always His Castle?” American Journal of Trial Advocacy 35, 3 (2012): 529–34.Google Scholar
  17. 32.
    Antos-Fallon, “The Fourth Amendment and Immigration Enforcement in the Home,” 1008; Sean M. Lewis, “The Fourth Amendment in the Hallway: Do Tenants Have a Constitutionally Protected Privacy Interest in the Locked Common Areas of Their Apartment Building?” Michigan Law Review 101, 1 (October 2002): 303.CrossRefGoogle Scholar
  18. 34.
    Myra Marx Ferree, “Beyond Separate Spheres: Feminism and Family Research,” Journal of Marriage and the Family 52, 4 (November 1990): 867.CrossRefGoogle Scholar
  19. 35.
    Tracy E. Higgins, “Reviving the Public/Private Distinction in Feminist Theorizing,” Chicago-Kent Law Review 75, 3 (2000): 847.Google Scholar
  20. 36.
    Leila J. Rupp, cited in Colin Koopman, “Public and Private in Feminism and Pragmatism,” International Studies in Philosophy 40, 2 (2008), 49.CrossRefGoogle Scholar
  21. 37.
    Raia Prokhovnik, cited in Ronnie Cohen and Shannon O’Byrne, “‘Can You Hear Me Now… Good!’ Feminism(s), the Public/Private Divide, and Citizens United v. FEC,” UCLA Women’s Law Journal 20, 1, (2013): 39.Google Scholar
  22. 38.
    Cited in Colin Koopman, “Public and Private in Feminism and Pragmatism,” International Studies in Philosophy 40, 2008): 49.CrossRefGoogle Scholar
  23. 39.
    Ruth Gavison, “Feminism and the Public/Private Distinction,” Stanford Law Review 45, 1 (November 1992): 5–7.CrossRefGoogle Scholar
  24. 41.
    Tracy E. Higgins, “Reviving the Public/Private Distinction in Feminist Theorizing,” Chicago-Kent Law Review 75, 3 (January 2000): 848.Google Scholar
  25. 51.
    Chris Armstrong and Judith Squires, “Beyond the Public/Private Dichotomy: Relational Space and Sexual Inequalities,” Contemporary Political Theory 1 (2002): 267.CrossRefGoogle Scholar
  26. 59.
    Mark A. Godsey, “Privacy and the Growing Plight of the Homeless: Reconsidering the Values Underlying the Fourth Amendment,” Ohio State Law Journal 53, 3 (1992): 869–70.Google Scholar
  27. 60.
    Michael D. Granston, “From Private Places to Private Activities: Toward a New Fourth Amendment House for the Shelterless,” The Yale Law Journal 101, 6 (April 1992): 1316.CrossRefGoogle Scholar
  28. 62.
    Amitai Etzioni, “The Bankruptcy of Liberalism and Conservatism,” Political Science Quarterly 128, 1 (April 2013): 39–65.CrossRefGoogle Scholar
  29. 65.
    Kevin Emas and Tamara Pallas, “United States v. Jones: Does Katz Still Have Nine Lives?” St. Thomas Law Review 24, 2 (2012): 172.Google Scholar
  30. 67.
    D. C. Roth, “Florida v. Jardines: Trespassing on the Reasonable Expectation of Privacy,” Denver University Law Review 91, 2 (2014): 554.Google Scholar
  31. 68.
    Cynthia Lee, “Package Bombs, Footlockers, and Laptops: What the Disappearing Container Doctrine Can Tell Us About the Fourth Amendment,” The Journal of Criminal Law and Criminology 100, 4 (2010): 1415.Google Scholar
  32. 78.
    “The Act prohibits law enforcement officials from searching for or seizing information from people who disseminate information to the public [the media]. Where it applies, the Act requires law enforcement officials to instead rely on compliance with a subpoena.” Elizabeth B. Uzelac, “Reviving the Privacy Protection Act of 1980,” Northwestern University Law Review 107, 3 (2013): 1437–68.Google Scholar
  33. 79.
    N. J. King and V. T. Raja, “What Do They Really Know About Me in the Cloud? A Comparative Law Perspective on Protecting Privacy and Security of Sensitive Information,” American Business Law Journal 50, 2 (2013): 424–31.CrossRefGoogle Scholar
  34. 80.
    Assume holding constant the level of public interest. The said markers would be recollected, for instance, when a terrorist attack is imminent or for other significant changes in public concerns. For more on this see Amitai Etzioni, Limits of Privacy (Basic Books: New York, 1999).Google Scholar

Copyright information

© Amitai Etzioni 2015

Authors and Affiliations

  • Amitai Etzioni

There are no affiliations available

Personalised recommendations