Is the Fourth Amendment “Fighting for its Life”?

A couple of weekends ago I attended Western State University Law Review’s National Security Symposium, featuring keynote speaker, Dean Erwin Chemerinsky.  The dean’s speech focused on the Supreme Court’s “failure” to uphold the Constitution and served as an introduction to the afternoon panel on the constitutionality of the National Security Agency’s (NSA) surveillance programs.  The latter panel featured Attorney Todd Gallinger, Professor John Radsan, Professor Ryan Williams, and this blog’s administrator, Professor William C. Snyder.

In his presentation, Dean Chemerinsky asserted that the “reasonable expectation of privacy” test—established by Katz v. United States (389 U.S. 247 (1967)) to determine the applicability of the Fourth Amendment and, if applicability is determined, the reasonableness of warrantless searches and seizures under the Fourth Amendment—“doesn’t work” to protect against the threats of the twenty-first century.  I live tweeted during Dean Chemerinsky’s speech (@Tara_Pistorese, #WSULRSymp2014), but was intrigued by the Fourth Amendment assertions by the dean and thought it prudent to devote a blog post to this topic.

To begin, here is the language of the Fourth Amendment for your reference:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As contributors to this blog and cyber scholars across the nation have argued, “the Supreme Court has repeatedly and consistently held that production of records about you in the hands of third parties[,]” such as metadata housed by your phone company, “does not implicate your constitutional rights.  You have no 4th Amendment protections regarding those records, [unless you meet the Katz test.]”  This argument finds additional support in Supreme Court cases such as Smith v. Maryland (44 U.S. 735 (1979)) and United States v. Miller (425 U.S. 435 (1976)), where the Court held that no reasonable expectation of privacy exists over phone company or bank records.  In other words, searches of such records do not meet the Katz test for implicating the Constitution at all.

Dean Chemerinsky’s argument, however, was more concerned with what he considers to be an outdated test that must be amended than with the constitutionality of searches that have thus far been conducted under the standard as presently articulated.  Specifically, the dean said, “What the Supreme Court needs to do, but has not yet done, is develop a theory of informational privacy.”

In Katz, which eventually established the “reasonable expectation of privacy” standard, the majority discussed the Fourth Amendment and the proper scope of its protections as follows:

[T]he Fourth Amendment cannot be translated into a general constitutional, ‘right to privacy.’  The Amendment protects individual privacy against certain kinds of government intrusion, but its protections go further, and often have nothing to do with privacy at all.  Other provisions of the Constitution protect personal privacy from other forms of governmental invasion.  But the protection of a person’s general right to privacy—his right to be let alone by other people—is like the protection of his property and of his very life, left largely to the law of the individual states. . . .

[T]he Fourth Amendment protects people, not places.  What a person knowingly exposes to the public, even in his own 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 (citations omitted).

Later, Justice Harlan’s concurring opinion explicated the words of the majority by saying (again, internal citations have been omitted):

I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone both is an area where, like a home, a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion in to a place that is in this sense private may constitute a violation of the Fourth Amendment; and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant. . . .

The critical fact in this case is that ‘(o)ne who occupies [] [a telephone booth,] shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume’ that his conversation is not being intercepted.  The point is not that the booth is ‘accessible to the public’ at other times, but that it is a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable (emphasis added).

Using Katz as a foundation, in my mind, Dean Chemerinsky’s proposal to change the standard upon which we consider searches and seizures with a technological component would require either: (1) broadening the current standard, or (2) employing a separate standard only for instances concerning “informational privacy.”  In either case, my question, generally, is: are we prepared to sacrifice elements of security in the name of this expanded right to privacy?

During the NSA panel at the same Western State University Symposium two weekends ago, Professor Ryan Williams discussed this trade-off between privacy and security and the implications of sacrificing one over the other.  Interestingly, Professor Williams posited that the word “sacrifice” itself implies an element of “knowledge”—in other words, you cannot sacrifice that which you do not know you are surrendering.  Think about this in the context of the NSA metadata collection program.  According to Professor Williams, it cannot be considered a “sacrifice” to permit the government to collect metadata from our phone calls in the name of increased security if we are not made aware that the government is doing so.

I cannot say I entirely agree with Professor Williams on this point for I think there may be instances where sacrifice could be simply the willingness not to know.  (My mind goes to the families of servicemen and women who are on classified assignment.  Would anyone argue that a mother or father’s willingness not to know the specifics of their son or daughter’s mission is not a sacrifice?)  Could it not be just as compellingly asserted that, if I choose security over privacy, I am making a sacrifice by accepting that there are actions the government may take in the name of security of which I choose not know?  To me, the willingness not to know of certain government programs is just as much a sacrifice as an explicit authorization of those activities.

However, even accepting that “knowledge” is somehow inherent in the concept of sacrifice, I would argue that the “reasonable expectation of privacy” test, against which Dean Chemerinsky advocates, at least contemplates “knowledge” by identifying instances where I am not entitled to it.

In other words, by identifying that there are circumstances under which our expectation of privacy would be “unreasonable,” the Court has effectively determined that we are not entitled to knowledge of government intrusion in those cases.  Thus, the Supreme Court has apparently drawn a line between security and privacy for us.

For example, when the NSA collects metadata from my phone calls, I am still sacrificing some of my privacy in the name of increased security even if I do not have true knowledge that it is occurring.  This is because, under the Katz standard, any expectation of privacy I have over that data would be unreasonable.  Am I entitled to “knowledge” if I don’t have a reasonable expectation to privacy?  When we think about it in this context, perhaps the Katz standard can be effectively applied in the technological or cyber realm.

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. She is the 2018-9 Editor in Chief of the Syracuse Law Review, as well as a member of the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

Anna Maria Castillois 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography


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