Page 76 - Privacy in a Cyber Age Policy and Practice

62 PRIVACY IN A CYBER AGE

B. The Historical Association between Privacy and the Home

Western culture has long held that the home is a sovereign place in which
privacy is highly protected. The Code of Hammurabi held the home as
sacrosanct; even the slightest uninvited intrusion into the home was
punished—on par with robbery and kidnapping—by death: “If a man
makes a breach into a house, one shall kill him in front of the breach and
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bury him in it.” An early record of a right to privacy is contained in the
Mishnah, a compilation of ancient Jewish oral law collected circa 200 CE,
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which constitutes the core of the Talmud. In ancient Greece, privacy
existed only on private property and within the family, and although Rome
had more expansive notions of privacy it was most important and best pro-
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tected in the house. In the 1500s this normative position was distilled in
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the phrase “a man’s home is his castle.” English common law offered the
house especial protections against intrusions by the government. 6
In the modern era, social science research added further rationales to
the long historical association between privacy and the home. Psychologi-
cal research indicated that the ability to exclude unwanted others from
one’s private spaces was essential for individuality and “personhood” to
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develop. Biologists observed that many animals have a natural urge to
seek privacy, and to establish this privacy through the creation of con-
trolled spaces separated by buffer zones analogous to houses, which have
physiological benefits. 8
The Supreme Court has repeatedly held that warrantless government
intrusions into the home are presumptively unreasonable unless they fall
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into one of a handful of exceptions. Indeed, the Fourth Amendment to the
U.S. Constitution explicitly names “houses” as a domain in which citizens have
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a right to be secure. Moreover, the Court has held on numerous occasions
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that the house stands apart from and above other secure domains. Legal
scholars describe the home as practically “sacred” in Fourth Amendment
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jurisprudence. (It should be noted that of course “secure” and “private”
are not synonymous; however a major way privacy is promoted is by making
a space secure from intrusion. It is hard to imagine a person not gaining at
least some privacy if he or she is secure, and difficult to conceive of anyone
feeling secure without privacy.)
Importantly, in Olmstead v. United States the Supreme Court stated that
the secure home was essential to civilization and liberty itself: “A sane,
decent, civilized society must provide some such oasis, some shelter from
public scrutiny, some insulated enclosure, some enclave, some inviolate
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space which is a man’s castle.” In Johnson v. United States, the Court
held that “the right of officers to thrust themselves into a home is also a
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grave concern.” In Silverman v. United States, the Court observed that,