Page 77 - Privacy in a Cyber Age Policy and Practice

PRIVACY: A PERSONAL SPHERE, NOT HOME-BOUND 63

“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 govern-
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mental intrusion.” And in Payton v. New York, the Supreme Court wrote
that “physical entry of the home is the chief evil against which the wording
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of the Fourth Amendment is directed” and “freedom from intrusion into
the home or dwelling is the archetype of the privacy protection secured
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by the Fourth Amendment.” In Payton, the Court found that the home’s
“unambiguous physical dimensions” facilitated the drawing of a bright line
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to secure against even the smallest government intrusion. One scholar
points out that the Supreme Court has suggested in its rulings that the
security of the house is central to the exercise of First Amendment rights
as well as the liberty associated with exercising control over decisions not
specifically regulated by the Constitution. 22
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The Supreme Court held, for instance in Smith v. Maryland, that a
Fourth Amendment search was defined by a physical government intru-
sion into one or more constitutionally protected interests—that is, persons,
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houses, papers, and effects. One may hence argue that the Constitution
refers to “houses” as merely one of four protected interests, the privacy
of which is entitled to special protection. However, considerable evidence
supports the thesis that the courts and others have viewed houses as enti-
tled to exceptional protection. (Indeed, legal scholars see a direct line con-
necting the normative idea that the house was sovereign and inviolate to
the writers of the Bill of Rights. As one of them put it, because “most of the
language and structure of the Fourth Amendment was primarily the work
of one man, John Adams,” understanding his views is critical to the task of
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grasping the framers’ intent. Adams was closely acquainted with the con-
cept that “a man’s home is his castle”—and he held this concept in the fore-
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ground of his thoughts when drafting America’s founding documents. )
Moreover, the Fourth Amendment, which was ratified in 1791, is
reported to have originated as a protection against writs of assistance;
these were general warrants that authorized British customs officers to
search houses or other personal property to find and seize unspecified
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smuggled goods. Writs of assistance were first used in the colonies in
1755; they replaced a system of search warrants issued by colonial gov-
ernors that “authorized search only in places set forth in the warrant and
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upon information given on oath that smuggled goods were hidden there.”
Semayne’s Case (1603), James Otis’s famous challenge to writs of assistance
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(1761), Wilkes v. Wood (1763), Entick v. Carrington (1765), and judges’
resistance of the Townsend Act (1767) collectively laid the foundation for
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opposition to general warrants in the colonies. The grievances advanced
in each of these cases specifically concerned homeowners and searches
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of houses. That the Fourth Amendment grew out of these cases and