Friday, January 25, 2013
Laurent Sacharoff (University of Arkansas - School of Law) has posted The Relational Nature of Privacy (Lewis & Clark Law Review, Vol. 16, No. 4, p. 1249, 2012) on SSRN. Here is the abstract:
The hard Fourth Amendment cases, especially those involving surveillance, ask whether the police investigative tactic at issue counts as a “search”; if not, the Fourth Amendment does not apply at all. Under the Court’s main test, at least for surveillance without a trespass, the police conduct a “search” if they invade a person’s reasonable expectation of privacy.
But when the Court assesses Fourth Amendment privacy, it treats it as an all-or-nothing concept without regard to the relation between the person searched and the person searching. For example, the Court has held that when the police rummage through a person’s garbage left curbside, this conduct does not amount to a search. The Court reasoned that a person does not expect privacy in his garbage in relation to animals, scavengers, or children, and therefore has no privacy in his garbage with respect to anyone, including the police.
This Article argues that in assessing the Fourth Amendment, the Court should take into account the relational nature of privacy, and acknowledge that we have a greater expectation of privacy as against the government than we do as against our neighbors and friends. In fact, we desire and expect the highest level of privacy when the government pursues a criminal investigation, and it is here the Fourth Amendment should play its greatest role. This follows based upon the relational nature of privacy, certain lines of Supreme Court precedent, such as the inventory and administrative search cases, and the history of the Fourth Amendment, rooted especially in the seminal John Wilkes cases, which were initiated as a criminal case.