Page 80 - Privacy in a Cyber Age Policy and Practice

66 PRIVACY IN A CYBER AGE

It is worth noting that some feminist scholars have argued that the
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public-private distinction can be rehabilitated and used as a tool of feminism.
For example, several feminist scholars have proposed alternate spatial divi-
sions predicated on intimacy and a right to exclusion, which are not tied
to specific physical locations infused with patriarchal gender symbolism.
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(These scholars include Elshtain and Iris Marion Young. )

2. Underprotecting the Poor and Vulnerable

First, legal scholars have argued that the exceptions to the inviolate home
permitted by law—namely administrative searches and consent—structurally
underprotect specific segments of the population. For example, where a
special need beyond law enforcement can be demonstrated and the gov-
ernment intrusion can be characterized as “principally benevolent,” the
intrusion may not even constitute a search at all. This was the conclusion
reached by the Supreme Court in a case regarding mandatory home vis-
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its to recipients of welfare benefits. This decision effectively designated
impoverished individuals—the recipients of government benefits—as a
group uniquely less protected against government intrusions. A persistent
belief in the United States that poverty is the product of moral deficit has
been used to justify a long series of warrantless intrusions into the houses
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of impoverished individuals by various government agencies. Similarly,
parolees and probationers have been held by the Supreme Court to lack
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the same privacy rights granted to other citizens, as have undocumented
immigrants whose houses are raided by Immigration and Customs
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Enforcement agents. Given that, in 2011, 23.1 percent of Americans
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(roughly 71,610,000 people) received some form of welfare benefits, this
underprotection affects a very large number of people.
Second, several scholars have pointed out that privileging the house over
persons, papers, and effects by the Supreme Court subjects those who do
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not own a home into which to retreat to more government intrusions. In
the United States in 2013, more than 600,000 Americans were homeless “on
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any given night.” One author writes, “[O]ur Fourth Amendment doctrine
has not been able to fully escape this archaic entanglement with property
[the concept of basing rights on one’s ownership of property] because it has
evolved under the assumptions that each citizen has a ‘house’ and that each
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person has some minimal access to personal property.” Most people who
do not own property recognized as a “house” by the Court live in the open
fields—“park benches, steam grates, alleyways, areas beneath bridges, and
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other shelterless habitats lacking any significant degree of enclosure” —
which have been explicitly recognized by the Court as a sphere of legitimate
government intrusion without a warrant. Even homeless persons who