Page 65 - Privacy in a Cyber Age Policy and Practice

50 PRIVACY IN A CYBER AGE

getting it. But the focus on the subjective expectations of one party to a
transaction does not explain or justify any legal rule, given the evident
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danger of circularity in reasoning.” Anthony G. Amsterdam points out
that the “actual, subjective expectation of privacy . . . can neither add to,
nor can its absence detract from, an individual’s claim to Fourth Amend-
ment protection. If it could, the government could diminish each person’s
subjective expectation of privacy merely by announcing half-hourly on
television that [. . .] we were all forthwith being placed under comprehen-
sive electronic surveillance.” 3
Jed Rubenfeld adds wisely that if expectations of privacy are “tied to
what a citizen ought to know about the norms specifically governing
policemen, Fourth Amendment law becomes a self-validating logical circle
in which any police practice can be justified (through its own adoption)
and in which any judicial decision will vindicate reasonable expectations of
privacy (because the judicial decision will itself warrant the expectations or
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lack of expectations it announces).” By this logic, he concludes, a totalitar-
ian society with government informants in every workplace and household
would satisfy the current interpretation of the Fourth Amendment as long
as citizens knew of the informants’ existence.
Richard Seamon extends this criticism, arguing that a “reasonable
expectations” test that concludes certain government privacy intrusions do
not count as searches “for Fourth Amendment purposes” is “not just circu-
lar” but causes a “downward spiral” in which restrictions on searches and
seizures are reduced over time by virtue of the Court’s semantics, thereby
undermining the “purpose of the Fourth Amendment’s guarantee against
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unreasonable searches.” According to Seamon, the reasoning used by the
Court in Kyllo v. United States (2001) demonstrates that the justices are
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aware of and struggling to deal with this dilemma. The majority admitted,
“The Katz test—whether the individual has an expectation of privacy that
society is prepared to recognize as reasonable—has often been criticized as
circular, and hence subjective and unpredictable.” 7
A social scientist finds it difficult to comprehend why the well-
established observation that Katz is tautological is not itself sufficient to lay
Katz to rest. One may argue that it is not tautological, because it is not just
an “expectation of privacy” that the Court recognizes but rather a “reason-
able expectation of privacy.” However, it is far from clear what “society”
or a particular segment thereof would consider “reasonable” in any given
situation, and the Court is left to again rely on its own shadow by deciding
on a case-by-case basis whether an expectation of privacy is one “society is
prepared to recognize as reasonable.” An expectation of privacy is reason-
able (or unreasonable) if the Court rules that it is.