Page 72 - Privacy in a Cyber Age Policy and Practice

EIGHT NAILS INTO KATZ’S COFFIN 57

effect reintroducing the property-based definition of privacy through a
back door! As Daniel Pesciotta points out, the Supreme Court used Katz to
maintain “steadfast support of citizens’ privacy rights in the most private of
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all places—the home. In the Katz ruling itself, the argument that Katz had
a reasonable expectation of privacy in a phone booth hinged on the fact
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that he “occupie[d]” the phone booth and “[shut] the door behind him.”
According to Justice Harlan, this made the phone booth a “temporarily pri-
vate place,” raising an implicit comparison to the only permanently private
place: the home. In United States v. Karo, the Court justified denying the
use of a tracking device within a house on the “basic Fourth Amendment
principle” that “private residences are places in which the individual nor-
mally expects privacy.” 53
Justice Antonin Scalia’s majority opinion in Kyllo v. United States, which
denied the use of infrared technology to evaluate the contents of a house,
made the case for a return to the home even more strongly. Justice Scalia
drew heavily on an earlier 1961 case, Silverman v. United States, in writing
that the “right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion” forms “the very core” of the Fourth
Amendment, which “draws a firm line at the entrance of the house” based
on “roots deep in the common law” that reveal the “minimal expectation
of privacy.” 54
In the same post-Katz period, cases dealing with surveillance technol-
ogy outside the home have rarely favored privacy interests. Such cases
include Smith v. Maryland, which held there was no “expectation of pri-
vacy” for lists of phone numbers dialed; United States v. Knotts, which
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allowed the use of a tracking device in public; and California v. Ciraolo
and Dow Chemical Co. v. United States, which allowed aerial surveillance of
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a backyard and a chemical plant, respectively.
Some legal scholars find some support for the transformative view of
Katz in the Supreme Court’s 2012 ruling in United States v. Jones, the first
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Fourth Amendment technology case in a decade. They cite this case as
revealing Katz’s potential to reconcile technology and privacy by protecting
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“a defendant’s Fourth Amendment rights in his public movements.” How-
ever, the majority in Jones held that a GPS device surreptitiously attached
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to a suspect’s vehicle violated his privacy rights based on the pre-Katz
“property-based approach” of a “common-law trespassory test” rather
than the “reasonable expectation of privacy” test. 61
In fact, a close reading of the Jones ruling reveals that the Court agreed
on the drawbacks of the “reasonable expectations” test. Justice Samuel Ali-
to’s concurrence, backed by three other justices, spent several paragraphs
discussing Katz’s flaws, including its “circularity,” its subjectivity, and
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especially the erosion of privacy expectations in the face of technology.