Page 18 - Privacy in a Cyber Age Policy and Practice

A CYBER AGE PRIVACY DOCTRINE 3

2. But Not Back to the “Castle”

While the time has come to leave behind the reasonable expectation stan-
dard, this is not to say that the courts should revert to pre-Katz Fourth
Amendment analysis, which gave considerable weight to the home as the
locus of privacy. (For more on this subject, see Chapter 4.) In Katz the
majority ruled that “the Fourth Amendment protects people, not places,”
rejecting the “trespass” doctrine enunciated in Olmstead. However, even
after this, the home remained largely inviolable in the eyes of the courts. It
seems Katz did not detach Fourth Amendment safeguards from the home
but rather extended the sphere of privacy beyond it to other protected
spaces. Information collected about events in one’s home is still often con-
sidered a priori a violation of privacy, while much more license is granted to
the state when it collects information about conduct in public and commer-
cial spaces. As Justice Antonin Scalia put it, drawing heavily on Silverman v.
United States, “‘At the very core’ of the Fourth Amendment ‘stands the right
of a man to retreat into his own home and there be free from unreasonable
governmental intrusion.’ With few exceptions, the question whether a war-
rantless search of a home is reasonable and hence constitutional must be
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answered no.” This idea has deep roots in American and English common
law: “The zealous and frequent repetition of the adage that a ‘man’s house is
his castle,’ made it abundantly clear that both in England and the Colonies
‘the freedom of one’s house’ was one of the most vital elements of English
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liberty.” In Dow Chemical Company v. United States, the court established
that the expectation of privacy was lower in an industrial plant than in a
home because the latter “is fundamentally a sanctuary, where personal con-
cepts of self and family are forged, where relationships are nurtured and
where people normally feel free to express themselves in intimate ways.” 10
The inviolability of the home and the private/public distinction in
privacy law has been roundly criticized by feminist scholars. Catharine
MacKinnon writes the problem with granting the home extra protection is
that “while the private has been a refuge for some, it has been a hellhole for
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others, often at the same time.” Linda McClain points out that freedom
from state interference in the home “renders men unaccountable for what
is done in private—rape, battery, and other exploitation.” 12
There is good reason to assume that the private/public distinction is
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rapidly declining in importance in general and with regard to privacy in
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particular. Marc Jonathon Blitz related this to the cyber age and hence is
quoted here at some length:
The 1969 case Stanley v. Georgia forbade the government from restricting
the books that an individual may read or the films he may watch “in the