Opinion:
JAY MICHAELSON
05.15.18 4:26 AM
This week, in the case of Byrd v. United States, the Supreme Court ruled unanimously that a person driving a rental car has the right to privacy—that is, not to have the car searched without probable cause—even if he’s not listed on the rental contract. It’s an interesting case, especially for law students, but not earth-shattering.
But the short concurring opinion by Justice Thomas, which Justice Gorsuch joined, is a terrifying warning to anyone who cares about privacy in the age of digital surveillance.
“I have serious doubts about the ‘reasonable expectation of privacy’ test,” Justice Thomas began. At which point my eyes popped out of my head.
For more than half a century, the “reasonable expectation of privacy” has been a bedrock of Fourth Amendment law in the United States. It is what keeps us safe from arbitrary government searches in our cars, in schools, and everywhere else outside the home. It is the doctrine whose boundaries are continually tested in the world of Big Data. And it is apparently a principle doubted by two justices of the Supreme Court.
To be sure, the words “reasonable expectation of privacy” do not appear in the Constitution, which is what irks “originalists” like Gorsuch and Thomas. Rather, the Fourth Amendment states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
That phrase covered the field in 1791. At the time, there were far fewer ways in which governmental searches might otherwise take place, particularly if you were the kind of propertied white male the text had in mind. And the Framers were clearly reacting against British army’s use of the “general warrant” to search people’s homes without any specific cause.
Well, times have changed. A crucial case this term, for example, is Carpenter v. United States. There, the question is whether the government needs a warrant to obtain a person’s location data from cellphone-tower records. It’s a close case, and it could go either way. But however it turns out, the “reasonable expectation of privacy” will be the standard the court uses—not some imaginary world in which the Founders knew about cellphones
JAY MICHAELSON
05.15.18 4:26 AM
This week, in the case of Byrd v. United States, the Supreme Court ruled unanimously that a person driving a rental car has the right to privacy—that is, not to have the car searched without probable cause—even if he’s not listed on the rental contract. It’s an interesting case, especially for law students, but not earth-shattering.
But the short concurring opinion by Justice Thomas, which Justice Gorsuch joined, is a terrifying warning to anyone who cares about privacy in the age of digital surveillance.
“I have serious doubts about the ‘reasonable expectation of privacy’ test,” Justice Thomas began. At which point my eyes popped out of my head.
For more than half a century, the “reasonable expectation of privacy” has been a bedrock of Fourth Amendment law in the United States. It is what keeps us safe from arbitrary government searches in our cars, in schools, and everywhere else outside the home. It is the doctrine whose boundaries are continually tested in the world of Big Data. And it is apparently a principle doubted by two justices of the Supreme Court.
To be sure, the words “reasonable expectation of privacy” do not appear in the Constitution, which is what irks “originalists” like Gorsuch and Thomas. Rather, the Fourth Amendment states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
That phrase covered the field in 1791. At the time, there were far fewer ways in which governmental searches might otherwise take place, particularly if you were the kind of propertied white male the text had in mind. And the Framers were clearly reacting against British army’s use of the “general warrant” to search people’s homes without any specific cause.
Well, times have changed. A crucial case this term, for example, is Carpenter v. United States. There, the question is whether the government needs a warrant to obtain a person’s location data from cellphone-tower records. It’s a close case, and it could go either way. But however it turns out, the “reasonable expectation of privacy” will be the standard the court uses—not some imaginary world in which the Founders knew about cellphones
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