It comes as a surprise to many people to learn that the federal courts do not recognize a right to privacy as a matter of constitutional law. But it is true. In large part, that is because at the time the Constitution was drafted, few would have thought it necessary to include such a right in the list of those protected by the Bill of Rights, the first ten amendments to the Constitution. The federal government was a comparatively weak and puny thing in that era; it was regarded as one of limited, or enumerated, powers. It did not have the authority to act unless that authority had been granted to it.
Times have changed. Today’s federal government asserts power broadly, and over increasing areas of our lives. The focus of constitutional law seems to have shifted. The government now behaves as though it has the power to do as it pleases unless and until it runs into an explicit constitutional prohibition.
Tuesday’s Supreme Court argument in the case of United States v. Jones will provide the Court with an opportunity to revisit privacy, and the limits of government authority. The case asks whether police officers are required to get a search warrant before attaching a GPS monitor to a person’s car, thereby acquiring the means to track a person’s movements indefinitely. Not surprisingly, the Justice Department says it has such a power.
Federalism maintains that different governments have different powers: The states have a general police power, or, as lawyers sometimes refer to it, a residual power, to do all that is necessary to assure the health, education and welfare of its citizens. Federal power, by contrast, is supposed to be limited to those named, or enumerated, in the federal Constitution. During the twentieth century, the lines between state and federal power were gradually erased. Today’s federal government asserts broad and sweeping powers; the states, dependent on federal revenue to survive, are little more than administrative units of a larger federal government.
In the Jones case, law enforcement officers wanted to develop evidence against a suspected drug dealer. So they attached a global positioning satellite device to his car, without a warrant, and unbeknownst to the dealer. Officers tracked his movements by means of remote satellite devices, then got warrants to search the locations he visited. They found a large stash of narcotics in cash. Jones was convicted and sentenced to life in prison. Similar tracking devices have been used to track animal rights activists.
At his trial, Jones’ lawyers tried to persuade the judge that attaching the electronic device to his car violated his Fourth Amendment rights. That amendment prohibits the government from engaging in unreasonable searches and seizures of a person, their home, their papers and their effects. The lower court concluded that electronic monitoring does not violate the Fourth Amendment. The Supreme Court will now review that decision.
Popular folklore in the United States suggests that a person armed with a copy of the federal Constitution has "rights" that are somehow inviolate and capable of being enforced on the spot. I’ve had potential clients come to see me to complain that their Constitutional rights have been violated. They recite chapter and verse of the document and act as though the words of the text should tumble right off the page and enforce themselves. It just isn’t that simple.
The Constitution is not self-effectuating. It need to be interpreted and applied to the case or controversy requiring decision. All judges are activists when interpreting the Constitution, and this is nowhere so clear as in the case of the Fourth Amendment.
The traditional analysis used for examining claims of Fourth Amendment violations requires a person to show two things: first, that they have an expectation of privacy that the government breached, and second that their individual expectation is one that society as a whole is prepared to regard as reasonable. This two-part test is not part of the Constitution itself. It is legal doctrine applied by the Supreme Court in examining Fourth Amendment claims.
The test evolved in response to by now antiquated technology. A bookmaker used a telephone booth to make a call. Law enforcement agents had placed an eavesdropping device on the outside of the phone booth to record the call. The Supreme Court said that whatever expectations the man himself had about the privacy of his call, society at large was not prepared to regard his expectations as reasonable. Hence, no Fourth Amendment violation.
In the Jones case, the government argues that no one has an expectation of privacy in the movements they make in public. And even if someone were foolish enough to assert such a claim, it is a claim the rest of us regard as unreasonable. In a digital world we all cast electronic shadows everywhere we go. There is no privacy in the public forum.
That is a powerful commonsensical argument that misses the larger and more chilling point: Do we expect government to create an electronic database detailing every movement we make outside our home?
I am reminded of religious pamphlets someone gave me as a child. I believe the cartoonist who drafted them was named J.T. Chick. The pamphlets were intended to terrify. Repent, they screamed, because on the day of judgment, God will be capable to hitting a rewind switch and will review, with you present, each every movement, each and every thought, you made in the course of a lifetime. I read those pamphlets with a sense of despair commingled with disgust. Yes, I am a sinner, and if on judgment day a tape of my life is played, I am a Hell-bound. But is God really all that great if all He has to do is wonder about the minutiae of my life? The majesty of God seems diminished by transforming Him into a heavenly schoolmarm or scold. Count me an agnostic in the larger of affairs of life.
But I am not agnostic about the power of Government. The judgments it imposes take place in the here and now. The Hound of Heaven might be a benign presence; FBI agents tracking me like electronic bloodhounds are not.
The analytic framework supporting claims of Fourth Amendment violations is rapidly becoming toothless in a society with cheap and easy surveillance. Perhaps we need an explicit right to privacy, either by way of constitutional amendment or Court decision. Frankly, I don’t hold out much hope that Court decision can yield the answer. Look what happened when the Court decided Roe v. Wade almost 40 years ago.
Technology is changing the world. The digital era has made possible tracking our every movement. Indeed, according to the authors of Top Secret America, a new book attempting to give shape to the new counter-terrorism industry in the United States since 9/11, the Government is at work creating a vast digital map of the continent that will permit lawmen, at a keystroke, to call up any location in the country and, including your home, to display all sorts of information, including floor plans of your residence. It may be unreasonable to expect privacy as a factual matter in a digital universe, but it is not unreasonable to expect, as a matter of law, that government will not be permitted to use the latest in technology to transform us into little more than digital sheep to be herded at will.