Page 78 - Privacy in a Cyber Age Policy and Practice

64 PRIVACY IN A CYBER AGE

opposition to writs of assistance suggests that it was intended to especially
prevent the type of intrusions—namely, those into the home—that so trou-
bled American colonists.
Finally, several legal scholars support the conclusion that the Fourth
32
Amendment’s original intent was explicitly to protect the home. They
suggest that the security of persons, papers, and effects was intended
to be secondary to the security of the home against government intru-
sion. An early treatise on constitutional law published in 1868—that is,
eighteen years prior to Boyd—explicitly stated that the original intent of
the Fourth Amendment was to protect the home from government intru-
sion, and separated this from a second goal of protecting persons, papers,
and effects. 33

C. Criticisms of “Housing Exceptionalism”

Scholars have argued that housing exceptionalism is flawed for two main
reasons. First, the prioritization of the house underprotects a wide swath of
activities that ought to be free from public intrusion. Second, the sanctity
of the home overprotects many activities that ought to be regulated by the
state. Feminist scholars as well as advocates for the homeless have advanced
strenuous criticisms of housing exceptionalism on the former grounds,
while second wave feminists have levied the latter criticism. These two
approaches are two sides of the same coin—they both fundamentally hold
that the public-private distinction is a rhetorical tool that extracts power
from certain groups of people and awards it to other groups. For this rea-
son, critics of this tool seek to vacate or fundamentally recast it.

1. Protection of Domestic Abusers

Feminist scholarship has offered criticism of housing exceptionalism
based on feminist academic analysis of the public-private dichotomy in the
34
1970s. One scholar calls “attacking the public[-]private line . . . one of the
primary concerns (if not the primary concern) of feminist legal theorizing
35
for over two decades” spanning 1980 to 2000. Another writes, “Perhaps
no concept has been more influential in the field of women’s history than
36
that of the distinction between public and private spheres.” Another held
37
that the public-private dichotomy is “the source of women’s oppression.”
Carole Pateman, one of the most influential feminist scholars to study the
dichotomy, called it “what the feminist movement is about.” 38
Feminist legal scholars pointed out that the liberal division of the
world into public and private spaces—a broad distinction that encom-
passes the dichotomies between political-apolitical, freedom-interference,