Security in the Spotlight: Reassessing Privacy’s Dominance in the Fourth Amendment
Security is the primary purpose of the Fourth Amendment. The failure to recognize this primacy has put the Fourth Amendment on the wrong track, to the detriment of all Americans.
The Framers were guided by English legal theory, particularly John Locke. Locke recognized that in the state of nature only force could secure one’s property from theft and predation. So, according to Locke, people entered into society in order to secure and protect their property. Indeed, James Madison, the father of our Constitution, wrote that, “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”
A key driver of the Revolution was the British government’s abuse of its colonists’ security. Parliament enacted various revenue measures and empowered officials to enforce them using “writs of assistance.” These writs authorized officials to break into and search private homes for uncustomed goods. They didn’t need any suspicion nor approval from any judge; they were a law unto themselves. Years later, remembering a 1761 trial where James Otis argued against the writs, our second president John Adams wrote that, “Then and there the child Independence was born.”
The Framers similarly focused on security, specifically securing their property against arbitrary invasions by the government, when drafting the Nation’s founding documents. Given his remarks following Otis’ argument, it’s little surprise that in Section 14 of the Massachusetts Declaration of Rights John Adams wrote that “Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.” Likewise, the text of the Fourth Amendment uses the term “secure.” As Professor Thomas Clancy has recognized, “the concept of security, in contradistinction to the modern notion of privacy, was repeatedly referenced in the framing era as defining the nature of the right that was to be protected in each of the objects ultimately listed in the amendment.”
In other words, the Fourth Amendment’s purpose is to secure our persons and property from arbitrary government invasions. But at the dawn of the 20th century, some began to reframe the Amendment as protecting our “privacy” from the world at large. Back in 1890 Louis Brandeis wrote a famous piece in which he extolled the “right to be let alone” and pushed “to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds.”
Once on the Court, Brandeis continued to press for this “right to privacy.” In 1928, the Court (wrongly) held in Olmstead v. United States that the Fourth Amendment had nothing to say about the government’s tapping of the telephone lines coming out of one’s home. Its reasoning was that the telephone lines were not listed in the Fourth Amendment, which speaks only of “persons, houses, papers and effects.” In response, Brandeis dissented, again claiming that in enacting the Fourth and Fifth Amendments
, the Framers meant to protect, “as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.”
Brandeis lost the case, but his focus on privacy carried the day. Forty years later, the Court issued Katz v. United States, in which it held that “the Fourth Amendment protects people, not places,” and rejected the hypertextualist approach laid out in Olmstead. In its place, the Court held that the government committed a search whenever in the course of acquiring evidence it violated a person’s “reasonable expectations of privacy.”
Although well-meaning, this focus on privacy has proved to be a mistake. It has led courts into thinking that only those things you keep private are eligible for constitutional protection. Look at the Third-Party Doctrine for instance. Originally, the Court held that mobsters couldn’t complain if they spoke with government informants wearing wires. But almost immediately, the Court took that principle and applied it to ordinary Americans. In a series of cases, the Court held that any information you share with others loses all Fourth Amendment protections. First it was bank records, then the phone numbers you dialed, and even the websites you visit. And to the Court, it didn’t matter whether the company you were doing business with promised to keep that information secure: the mere fact you shared it with anyone made it fair game to the government.
Or look at the current controversy surrounding pole cameras. Officials sometimes use these cameras in investigations, pointing them at a person’s residence for weeks or months at a time. That’s surely a search, right? Well, it depends on where you live. Some states’ high courts have held that such extended surveillance is a search requiring a warrant. But many federal courts have rejected that premise, holding that because anyone could walk by and glance at the outside of your home as they pass, you cannot reasonably expect privacy against the government. Similarly, Long Lake Township argued to the Michigan Supreme Court that its repeated drone flights over someone’s property wasn’t a search because, theoretically, an airline passenger could look down and see the same.
This “risk-based”/privacy view of the Fourth Amendment is corrosive. Under it, the only way to maintain your privacy as against the government is to refrain from participating in public life. No banking. No phone line or cell phone. No Internet. No nothing. Anything you voluntarily expose to the world becomes fair game. Brandeis couldn’t have foreseen it, but decades of jurisprudence has turned his dream about the “right to be let alone” into a nightmare.
So it’s time to go back to first principles. And the biggest principle is that the Fourth Amendment, like all the Bill of Rights, is meant to curtail the government. As the Framers recognized, government has the unique power to legally take away your property and liberty, something no private entity can do. So it shouldn’t matter constitutionally whether I share my financial information with my bank, or if passersby can catch a glimpse of my front door. The critical fact is that the government wants to investigate my person and property, and my personal security means that the government must jump through certain hoops (such as getting a real warrant) before it may do so.