Expectation of privacy (United States)

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In United States constitutional law, expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the U.S. Constitution. It is related to, but is not the same as, a right to privacy , a much broader concept which is found in many legal systems (see privacy law). Overall, expectations of privacy can be subjective or objective.

Contents

Overview

There are two types of expectations of privacy:

Places where individuals expect privacy include residences, hotel rooms, [1] or public places that have been provided by businesses or the public sector to ensure privacy, including public restrooms, private portions of jailhouses, [2] or phone booths. [3] This expectation extends against both physical and digital intrusions, and even cell tower geolocation data is protected. [4]

In general, one cannot have a reasonable expectation of privacy for things put into a public space. [5] There are no privacy rights in garbage left for collection in a public place. [6] [2] Other examples include: pen registers that record the numbers dialed from particular telephones; [7] conversations with others, though there could be a Sixth Amendment violation if the police sends an individual to question a defendant who has already been formally charged; [8] a person's physical characteristics, such as voice and handwriting; [9] what is observed pursuant to aerial surveillance that is conducted in public navigable airspace not using equipment that unreasonably enhances the surveying government official's vision; [10] anything in open fields (e.g., a barn); [11] smells that can be detected by the use of a drug-sniffing dog during a routine traffic stop, even if the government official did not have probable cause or reasonable suspicion to suspect that drugs were present in the defendant's vehicle; [12] and paint scrapings on the outside of a vehicle. [13]

While a person may have a subjective expectation of privacy in his/her car, it is not always an objective one, unlike a person's home. [2] Expectation of home privacy extends to thermal imaging. [14]

The expectation of privacy concept also applies civilly [15] whereas the unreasonable violation of which may result in mental distress rather than incarceration. [16] [17] Civil privacy expects against: (1) intrusion upon seclusion or solitude, or into private affairs; (2) public disclosure of embarrassing private facts; (3) publicity which places a person in a false light in the public eye; and (4) appropriation of name or likeness. [15]

The expectation of privacy is crucial in distinguishing a legitimate, reasonable police search and seizure from an unreasonable one.

A "search" occurs for purposes of the Fourth Amendment when the Government violates a person's "reasonable expectation of privacy". [3] In Katz v. United States , 389 U.S. 347 (1967) Justice Harlan issued a concurring opinion articulating the two-prong test later adopted by the U.S. Supreme Court as the test for determining whether a police or government search is subject to the limitations of the Fourth Amendment:

To meet the first part of the test, the person from whom the information was obtained must demonstrate that they, in fact, had an actual, subjective expectation that the evidence obtained would not be available to the public. In other words, the person asserting that a search was conducted must show that they kept the evidence in a manner designed to ensure its privacy.

The first part of the test is related to the notion "in plain view". If a person did not undertake reasonable efforts to conceal something from a casual observer (as opposed to a snoop), then no subjective expectation of privacy is assumed. [18]

The second part of the test is analyzed objectively: would society at large deem a person's expectation of privacy to be reasonable? If it is plain that a person did not keep the evidence at issue in a private place, then no search is required to uncover the evidence. For example, there is generally no search when police officers look through garbage because a reasonable person would not expect that items placed in the garbage would necessarily remain private. [19] An individual has no legitimate expectation of privacy in information provided to third parties. In Smith v. Maryland , 442 U.S. 735 (1979), the Supreme Court held individuals have no "legitimate expectation of privacy" regarding the telephone numbers they dial because they knowingly give that information to telephone companies when they dial a number. [7] Therefore, there is no search where officers monitor what phone numbers an individual dials, [7] although the Congress has enacted laws that restrict such monitoring. The Supreme Court has also ruled that there is no objectively reasonable expectation of privacy (and thus no search) when officers hovering in a helicopter 400 feet above a suspect's house conduct surveillance. [10] The U.S. Court of Appeals for the Sixth Circuit held in 2010 that users did have a reasonable expectation of privacy in the contents of their e-mail in United States v. Warshak , although no other court of appeals has followed suit. [20]

In cyberspace

Most Internet users expect some extent of privacy protection from the law while they are online. However, scholars argue that lack of understanding of the Internet as either a public or private space leads to issues in defining expectations of the law. [21] The Fourth Amendment may not protect informational privacy. Relevant exceptions to the Fourth Amendment's warrant requirement include "1) when consent to search has been given ( Schneckloth v. Bustamonte , 1973), (2) when the information has been disclosed to a third party ( United States v. Miller , 1976), and (3) when the information is in plain view of an officer ( Horton v. California , 1990)". [22]

There is an expectation of privacy for the contents of a cellphone. [23] Cellphones receive Fourth Amendment protection because they no longer contain just phone logs and address books; they contain a person's most sensitive information that they believe will be kept private. [23] The expectation of privacy has been extended to include the totality of a person's movements captured by tracking their cellphone. [24] Generally, a person loses the expectation of privacy when they disclose information to a third party, [25] including circumstances involving telecommunications. [26] However, the Supreme Court has extended Fourth Amendment protections to the CSLI data generated by a cellphone tracking a user's movements because the disclosure is not voluntary, phone companies keep the records for years, and the invasive nature of the scope of information that can be gathered by tracking a person's movement for extended periods of time. [24]

Court cases

In Florida v. Jardines on March 26, 2013, the U.S. Supreme Court ruled that police violated the Fourth Amendment rights of a homeowner when they led a drug-sniffing dog to the front door of a house suspected of being used to grow marijuana.

In a 5-to-4 decision, the court said that police conducted a "search" when they entered the property and took the dog to the house's front porch. Since the officers had not first obtained a warrant beforehand, their search was unconstitutional, the court said. The court said the police officers violated a basic rule of the Fourth Amendment by physically intruding into the area surrounding a private home for investigative purposes without securing a warrant.

"When it comes to the Fourth Amendment, the home is first among equals," Justice Scalia wrote. "At the amendment's very core stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion." Scalia added: "This right would be of little practical value if the state's agents could stand in a home's porch or side garden and trawl for evidence with impunity."

This case may provide some argument or protection in the area of reasonable expectation of privacy in one's home and curtilage given the rapid advancement of drone technology, particularly given law enforcements' stated intent to deploy these technologies. This question may well turn on the court's interpretation of the "naked eye" test (described in the earlier Ciraolo case) in relation to the "enhanced view" test. It would seem enhanced view(s) are achievable through the use of drone technology. See also: Kyllo v. United States, 533 U.S. 27 (2001) (precludes enhanced views from outside a home without a warrant, using thermal imaging).

In Missouri v. McNeely on April 17, 2013, the U.S. Supreme Court ruled that police must generally obtain a warrant before subjecting a drunken-driving suspect to a blood test. The vote was 8-to-1, with Justice Clarence Thomas the lone dissenter.

In Katz v. United States on October 17th, 1967, Justice Harlan created the Reasonable Expectation of Privacy Test in his concurring opinion. [27] The two-part test consists of:

  1. The individual has exhibited an actual (subjective) expectation of privacy
  2. The expectation is one that society is prepared to recognize as reasonable

In marketing

Privacy has also been talked about in the context of business actions, consumer reaction, and regulatory efforts from both consumers and marketers' interaction. Milne and Shalini (2010) presented the question of how both of these groups start and upkeep privacy boundaries. Information about the relationship between consumers and marketers has been defined by this fine line of what is the privacy a customer is willing to provide to the marketer. [28] Milne and Shalini (2010) used information gathered in a national online survey to compare three different groups of customers. [28] They asked these groups questions around the limits of using information technology such as the use of cookies, biometrics, loyalty cards, radio frequency identification, text messaging, pop-up advertisements, telemarketing, and spam. The authors use these same surveys with groups of marketing managers and database vendors. This survey study presented results that provided discussion as there was a discrepancy in the answers from the customers and the marketers/vendors. The customers' expectations around privacy were different from those of a marketer/vender. The difference in their answers prompted the Milne and Shalini (2010) to advise for attention to this issue and asked for public policy to take notice of these findings. [28]

See also

Related Research Articles

<span class="mw-page-title-main">Fourth Amendment to the United States Constitution</span> 1791 amendment prohibiting unreasonable searches and seizures

The Fourth Amendment to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures and sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or things to be seized.

<span class="mw-page-title-main">Search and seizure</span> Police powers

Search and seizure is a procedure used in many civil law and common law legal systems by which police or other authorities and their agents, who, suspecting that a crime has been committed, commence a search of a person's property and confiscate any relevant evidence found in connection to the crime.

United States v. Place, 462 U.S. 696 (1983), is a decision by the Supreme Court of the United States in which the Court held that it does not violate the Fourth Amendment to the U.S. Constitution for a trained police dog to sniff of a person's luggage or property in a public place.

Katz v. United States, 389 U.S. 347 (1967), was a landmark decision of the U.S. Supreme Court in which the Court redefined what constitutes a "search" or "seizure" with regard to the protections of the Fourth Amendment to the U.S. Constitution. The ruling expanded the Fourth Amendment's protections from an individual's "persons, houses, papers, and effects", as specified in the Constitution's text, to include any areas where a person has a "reasonable expectation of privacy". The reasonable expectation of privacy standard, now known as the Katz test, was formulated in a concurring opinion by Justice John Marshall Harlan II.

Kyllo v. United States, 533 U.S. 27 (2001), was a decision by the Supreme Court of the United States in which the court ruled that the use of thermal imaging devices to monitor heat radiation in or around a person's home, even if conducted from a public vantage point, is unconstitutional without a search warrant. In its majority opinion, the court held that thermal imaging constitutes a "search" under the Fourth Amendment, as the police were using devices to "explore details of the home that would previously have been unknowable without physical intrusion." The ruling has been noted for refining the reasonable expectation of privacy doctrine in light of new surveillance technologies, and when those are used in areas that are accessible to the public. This case has been praised by legal scholars since the Court refused to be the arbiter to determine "what is and is not intimate" and thus worthy of protection. Instead, the Court opted to focus on "the invasiveness of the technology itself" and its ability to enable all kinds of government surveillance in the home.

Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure. This right provides those in Canada with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.

Illinois v. Caballes, 543 U.S. 405 (2005), is a decision by the Supreme Court of the United States in which the Court held that the use of a drug-sniffing police dog during a routine traffic stop does not violate the Fourth Amendment to the U.S. Constitution, even if the initial infraction is unrelated to drug offenses.

South Dakota v. Opperman, 428 U.S. 364 (1976), elaborated on the community caretaking doctrine. Under the Fourth Amendment, "unreasonable" searches and seizures are forbidden. In addition to their law-enforcement duties, the police must engage in what the court has termed a community caretaking role, including such duties as removing obstructions from roadways to ensure the free flow of traffic. When the police act in this role, they may inventory cars they have seized without "unreasonably" searching those cars.

Smith v. Maryland, 442 U.S. 735 (1979), was a Supreme Court case holding that the installation and use of a pen register by the police to obtain information on a suspect's telephone calls was not a "search" within the meaning of the Fourth Amendment to the United States Constitution, and hence no search warrant was required. In the majority opinion, Justice Harry Blackmun rejected the idea that the installation and use of a pen register constitutes a violation of the suspect's reasonable expectation of privacy since the telephone numbers would be available to and recorded by the phone company anyway.

Ferguson v. City of Charleston, 532 U.S. 67 (2001), is a United States Supreme Court decision that found Medical University of South Carolina's policy regarding involuntary drug testing of pregnant women to violate the Fourth Amendment. The Court held that the search in question was unreasonable.

Bond v United States, 529 U.S. 334 (2000), was a United States Supreme Court Fourth Amendment case that applied the ruling of Minnesota v. Dickerson to luggage, which held that police may not physically manipulate items without a warrant without violating the Fourth Amendment. The Court ruled that this satisfied the two prong test established by Katz v. United States that, (1) a subjective expectation of privacy in the area in question and (2) that the expectation is reasonable in order for the protections of the Fourth Amendment. In this case, the Court ruled that since the Defendant tried to preserve his privacy by using an opaque bag and that it is reasonable for the Defendant to believe that his bag would not be felt in an "exploratory manner" that the two prongs were satisfied.

Ontario v. Quon, 560 U.S. 746 (2010), is a United States Supreme Court case concerning the extent to which the right to privacy applies to electronic communications in a government workplace. It was an appeal by the city of Ontario, California, from a Ninth Circuit decision holding that it had violated the Fourth Amendment rights of two of its police officers when it disciplined them following an audit of pager text messages that discovered many of those messages were personal in nature, some sexually explicit. The Court unanimously held that the audit was work-related and thus did not violate the Fourth Amendment's protections against unreasonable search and seizure.

O'Connor v. Ortega, 480 U.S. 709 (1987), is a United States Supreme Court decision on the Fourth Amendment rights of government employees with regard to administrative searches in the workplace, during investigations by supervisors for violations of employee policy rather than by law enforcement for criminal offenses. It was brought by Magno Ortega, a doctor at a California state hospital after his supervisors found allegedly inculpatory evidence in his office while he was on administrative leave pending an investigation of alleged misconduct. Some of what they uncovered was later used to impeach a witness who testified on his behalf at the hearing where he unsuccessfully appealed his dismissal.

Mancusi v. DeForte, 392 U.S. 364 (1968), is a decision of the United States Supreme Court on privacy and the Fourth Amendment. It originated in the lower courts as United States ex rel. Frank DeForte, appellant v. Vincent R. Mancusi, Warden of Attica Prison, Attica, New York, appellee, a petition for a writ of habeas corpus by a prisoner who had exhausted all his state appeals. By a 6–3 margin the Court affirmed the United States Court of Appeals for the Second Circuit's reversal of a district court denial of the petition.

United States v. Jones, 565 U.S. 400 (2012), was a landmark United States Supreme Court case in which the court held that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment.

<i>United States v. Graham</i>

United States v. Graham, 846 F. Supp. 2d 384, was a Maryland District Court case in which the Court held that historical cell site location data is not protected by the Fourth Amendment. Reacting to the precedent established by the recent Supreme Court case United States v. Jones in conjunction with the application of the third party doctrine, Judge Richard D. Bennett found that "information voluntarily disclosed to a third party ceases to enjoy Fourth Amendment protection" because that information no longer belongs to the consumer, but rather to the telecommunications company that handles the transmissions records. The historical cell site location data is then not subject to the privacy protections afforded by the Fourth Amendment standard of probable cause, but rather to the Stored Communications Act, which governs the voluntary or compelled disclosure of stored electronic communications records.

<i>Florida v. Jardines</i> 2013 United States Supreme Court case

Florida v. Jardines, 569 U.S. 1 (2013), was a United States Supreme Court case which resulted in the decision that police use of a trained detection dog to sniff for narcotics on the front porch of a private home is a "search" within the meaning of the Fourth Amendment to the United States Constitution, and therefore, without consent, requires both probable cause and a search warrant.

The third-party doctrine is a United States legal doctrine that holds that people who voluntarily give information to third parties—such as banks, phone companies, internet service providers (ISPs), and e-mail servers—have "no reasonable expectation of privacy" in that information. A lack of privacy protection allows the United States government to obtain information from third parties without a legal warrant and without otherwise complying with the Fourth Amendment prohibition against search and seizure without probable cause and a judicial search warrant.

Carpenter v. United States, 585 U.S. 296, 138 S.Ct. 2206 (2018), is a landmark United States Supreme Court case concerning the privacy of historical cell site location information (CSLI). The Court held that the government violates the Fourth Amendment to the United States Constitution when it accesses historical CSLI records containing the physical locations of cellphones without a search warrant.

Digital Search and Seizure refers to the ability of the United States Government to obtain and read an individual's private digital correspondence and material under The Fourth Amendment of the United States Constitution.

References

  1. ↑ Do Not Disturb: Fourth Amendment Expectations of Privacy in Hotel Rooms, Medical examination rooms, Social Science Research Network (2010)
  2. 1 2 3 Bergman, Paul; Berman-Barrett, Sara J. (2007). The Criminal Law Handbook: Know Your Rights, Survive the System. NOLO. pp. 38, 62. ISBN   978-1-4133-0704-7.
  3. 1 2 Katz v. U.S. , 389 U.S. 347, 361 (1967).
  4. ↑ Carpenter v. United States , 585 U.S. ___(2018).
  5. ↑ "Expectation of Privacy". LII / Legal Information Institute. Retrieved 2021-09-03.
  6. ↑ California v. Greenwood , 486U.S.35 ( Supreme Court of the United States 1988).
  7. 1 2 3 Smith v. Maryland , 442 U.S. 735 (1979).
  8. ↑ Massiah v. United States , 377 U.S. 201 (1964).
  9. ↑ U.S. v. Dionisio , 410 U.S. 1 (1973).
  10. 1 2 Florida v. Riley , 488 U.S. 455 (1989).
  11. ↑ Oliver v. United States, 466 U.S. 170 (1984).
  12. ↑ Illinois v. Caballes , 543 U.S. 405 (2005).
  13. ↑ Cardwell v. Lewis , 417 U.S. 583 (1974).
  14. ↑ Kyllo v. United States , 533 U.S. 27 (2001).
  15. 1 2 Richards, Neil M.; Solove, Daniel J. (2010). "Prosser's Privacy Law: A Mixed Legacy". California Law Review. 98 (6). Berkeley Law Library Catalog. doi: 10.15779/z38541p .
  16. ↑ Time, Inc. v. Hill , 385 U.S. 374 (196)).
  17. ↑ Cantrell v. Forest City Publishing Co. , 419 U.S. 245 (1974).
  18. ↑ Mark Tunick (1998) "Practices and Principles: Approaches to Ethical and Legal Judgment", ISBN   0-691-07079-2 pp. 163–166
  19. ↑ California v. Greenwood , 486 U.S. 35 (1988).
  20. ↑ United States v. Warshak , 631F.3d266 (6th Cir.2010).
  21. ↑ Trabsky, Marc; Thomas, Julian; Richardson, Megan (January 2013). "The faulty door of cyberspace and implications for privacy law". Law in context. 29 (1).
  22. ↑ Pekgözlü, İlker; Öktem, Mustafa Kemal (2012). "Expectation of Privacy in Cyberspace: The Fourth Amendment of the US Constitution and an Evaluation of the Turkish Case". Sosyoekonomi. 18 (2).
  23. 1 2 Riley v. California, 573 U.S. 373 (2014)
  24. 1 2 Carpenter v. US, 138 S.Ct. 2206 (2018)
  25. ↑ United States v. Miller, 425 U.S. 435 (1976)
  26. ↑ Smith v. Maryland, 442 U.S. 735 (1979)
  27. ↑ "expectation of privacy". LII / Legal Information Institute. Retrieved 2024-02-09.
  28. 1 2 3 Milne, George R.; Bahl, Shalini (2013-05-29). "Are There Differences Between Consumers' and Marketers' Privacy Expectations? A Segment- and Technology-Level Analysis". Journal of Public Policy & Marketing. 29: 138–149. doi:10.1509/jppm.29.1.138.
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