Page 75 - Privacy in a Cyber Age Policy and Practice

4

Privacy: A Personal Sphere,

Not Home-Bound

A. Introduction

“[T]he Fourth Amendment protects people, not places. What a person
knowingly exposes to the public, even in his home or office, is not a subject
of Fourth Amendment protection. But what he seeks to preserve as private,
even in an area accessible to the public, may be constitutionally protected.”
1
So stated the Supreme Court majority in Katz v. United States in 1969. This
chapter builds on this statement and attempts to show that it has gener-
ally gone unheeded in Fourth Amendment case law since 1969, and that
sweeping and significant technological advances mean that the statement
is more valuable than ever.
In this chapter, I suggests criteria upon which to build a coherent
standard for evaluating the legitimacy of privacy claims, one that applies
regardless of a person’s location—whether he is at home or in public
space—and does not require assessing what a person “expects” or does
“knowingly.” The following sections briefly review the historical associa-
tion between privacy and the home, outline scholars’ criticisms of this
association, and point to technological developments that greatly blur the
difference between the private and public realms. I then examine a means
of moving away from using the walls of the house (and of other physical
spaces such as cars and those encompassed by containers) to separate the
areas in which privacy ought to be privileged. After suggesting that a major
previous attempt to accomplish this, based on the well-known case Katz v.
United States, has failed, I outline a new foundation for defining a sphere
in which a person’s privacy should be privileged that would accompany the
person to any location, either public or private.