Posts Tagged ‘4th Amendment’


Reinterpreting the Fourth Amendment

   Posted by: Robert    in Law

I recently happened across an article published by Jed Rubenfeld in the Stanford Law Review entitled The End of Privacy.  Although that phrase is usually thrown about in the context of discussions about how the government is increasingly intruding into private life (and let me just say, Mr. NSA Agent, you have a very handsome shirt), the essence Mr. Rubenfeld’s article actually has almost nothing to do with that.  Instead, his core argument is against believing that the Fourth Amendment is a privacy amendment at all.  His argument is interesting on several levels.

From a textualist standpoint, Mr. Rubenfeld gets us a fair bit closer to what the Fourth Amendment actually says than anything the courts have done in recent memory.  His essential argument begins with the observation that the word “private” does not appear anywhere in the Fourth Amendment.  The word “secure” does.  Therefore, what the Fourth Amendment must actually protect is security rather than privacy, or the “reasonable expectation” (Katz v. United States, Harlan, J., concurring) thereof.

If the textual argument alone is unpersuasive, Mr. Rubenfeld goes on to dismantle the “reasonable expectation” doctrine, and does so rather handily.  He points out the circularity problem, which boils down to the observation that the amount of privacy a person can “reasonabl[y] expect[]” is fundamentally tied to how much privacy they know they are actually being afforded.  Mr. Rubenfeld tells us that the courts have avoided the circularity problem by “root[ing] individuals’ privacy expectations in widespread social norms drawn … from outside the law enforcement context.” (The End of Privacy, pg 8)  This avoidance mechanism, as a practical matter, has led the courts to develop what Mr. Rubenfeld calls the “Stranger Principle,” the principle that anything “we have exposed to perfect strangers, we cannot claim to be private.” (ibid)  Replace “perfect strangers” with “third parties” (Smith v. Maryland) and you have the effective destruction of any meaningful limit on what information the government might actually be able to obtain.

With the privacy logic thus dealt with, Mr. Rubenfeld moves on to talking about security.  At the risk of oversimplifying what would often be a subtle distinction, what Mr. Rubenfeld seems to be proposing is a reading of the Fourth Amendment in which the government is disabled from not only taking information from you directly, but also from taking information indirectly through third parties, and from conducting espionage undercover operations against its own citizens.

The remainder of the article eventually turns to arguments of how this approach to the Fourth Amendment could have stopped Bush from doing some of the things he allegedly did.  I found these arguments to be overstated, though they did expose some interesting other aspects of Mr. Rubenfeld’s thinking.  Of greatest interest was his conception of the Fourth Amendment as being both an individual and collective right in which the individual security right may be violated when the government engages in activities (e.g. NSA wiretapping) which tend to decrease the sense of security held by society as a whole.  Also interesting was his view that courts would be disabled from engaging in balancing tests.

Although it is a bit long for general consumption, there is a lot to like about Mr. Rubenfeld’s article.  His foundation strikes me as being a whole lot closer to the actual text of the Fourth Amendment than the current practices of the courts.  That is not, of course, to say that his argument is perfect, and it appears to leave some important questions unanswered.  it does, however, create a good starting point for anyone looking for a way out of the wilderness of Fourth Amendment “privacy.”

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