ReadingGuide/!MCLE!Participant!Materials:!Tableof!Contents ·...

In 1974, Coppola gave the flaw inherent in the Court’s “reasonable expectation of privacy” doctrine a face, that of Harry Caul (Gene Hackman).

Reading Guide / MCLE Participant Materials: Table of Contents ______________________________________

I. The Reasonable Expectation of Privacy: Advanced by the Court -‐-‐ excerpts from “The Conversation cases”

Katz v. United States, 389 U.S. 347, 348-‐74, 88 S. Ct. 507, 509-‐23, 19 L. Ed. 2d 576 (1967) United States v. White, 401 U.S. 745; 91 S.Ct. 1122; 28 L.Ed.2d 453 (1971)

II. The Reasonable Expectation of Privacy: Examined in Legal Scholarship-‐-‐ excerpts from the period’s iconic legal thinkers

Anthony G. Amsterdam, Perspectives on the Fourth Amendment. 58 Minnesota Law Review 349 (1974) Charles Fried, Privacy, 77 Yale L.J. 475 (1968) Arthur R. Miller. The Assault on Privacy: Computers, Data Banks, and Dossiers (1971) Richard A. Posner, The Right of Privacy, 12 Georgia Law Review 393 (Spring 1978) Alan F. Westin. Privacy and Freedom (1967)

III. The Reasonable Expectation of Privacy: Defined by Social Practice-‐-‐ excerpts from the era’s defining social commentators

Shirley M.Hufstedler, The Directions and Misdirections of a Constitutional Right of Privacy (1971) James Rachels, Why Privacy Is Important, Philosophy and Public Affairs, Vol. 4, No. 4 (Summer 1975) Jeffrey H. Reiman, Privacy, Intimacy, and Personhood, Philosophy & Public Affairs, Vol. 6, No. 1 (Autumn

1976) Richard Sennett, The Fall of Public Man (1977) Judith Jarvis Thomson, The Right to Privacy, Philosophy and Public Affairs, Vol. 4, No. 4 (Summer 1975)

IV. The Reasonable Expectation of Privacy: Altered by Four Decades?-‐-‐ excerpts from the GPS case

United States v. Jones, 132 S. Ct. 945, 946-‐64, 181 L. Ed. 2d 911 (2012)

V. The Reasonable Expectation of Privacy: Crafted by Litigants -‐-‐ unedited briefs filed by symposium presenters

Katz v. United States, Brief of Petitioner’s Supreme Court Counsel Harvey Schneider United States v. Jones, Brief of Supreme Court Amicus Counsel Catherine Crump

A Note on the Use of These Materials _________________________________

The following excerpts – and the related material accompanying them (i.e., the website’s detailed Timeline, its articulation of Focus, and its presentation of carefully-‐chosen visual materials) -‐-‐ have been selected and produced with the symposium’s purpose in mind: not to reiterate contemporary analyses of “the reasonable expectation of privacy,” but to ground our investigation of that concept in its foundational documents. Today, what we know of privacy is the product of an “anxious decade” when privacy was the chief concern of society’s best thinkers, writers, cultural commentators, and legal analysts.

Essentially, these materials, like our presenters, are intended offer an introduction to what the Hon. Shirley Hufstedler identified as our best hope for understanding what Americans expect in their aspirations toward privacy: “not classification, but insight into human reality. Insight here is not newly discovered truth, but old truth reinforced by the observations of historians, anthropologists, naturalists, biologists, psychologists, and social scientists.”

As reminders of, references to, and samples from defining work, they are liberally-‐edited, with the edits of symposium-‐editors idiosyncratically indicated by the sign * * * (three asterisks), distinguishing our cuts from conventional ellipses, which occur often in the original materials themselves. As a general rule and in the interest of making them short and easy to read, these samples also omit footnotes and internal citations. Notes and citations, where they are found, have been left in to advance relevant inquiry.

(Notably, no edits were made in the Supreme Court briefs filed by our presenters, other than as to transcript citations. The * * * (three asterisks) signs you will find in the brief in Katz v. United States appear in the original.)

These materials have been compiled and prepared exclusively for use by participants at this U.C.-‐Hastings symposium and by students of U.C. Hastings.

What [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

From: Katz v. United States, 389 U.S. 347, 348-‐74, 88 S. Ct. 507, 509-‐23, 19 L. Ed. 2d 576 (1967) _______________________________________________

MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioner was convicted in the District Court for the Southern District of California under an eight-‐count indictment charging him with transmitting wagering information by telephone from Los Angeles to Miami and Boston in violation of a federal statute. At trial the Government was permitted, over the petitioner's objection, to introduce evidence of the petitioner's end of telephone conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth from which he had placed his calls. In affirming his conviction, the Court of Appeals rejected the contention that the recordings had been obtained in violation of the Fourth Amendment, because ‘(t)here was no physical entrance into the area occupied by, (the petitioner).’ We granted certiorari in order to consider the constitutional questions thus presented.

The petitioner had phrased those questions as follows:

‘A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth.

‘B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution.’

We decline to adopt this formulation of the issues. In the first place the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase ‘constitutionally protected area.’ Secondly, the Fourth Amendment cannot be translated into a general constitutional ‘right to privacy.’ That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other

I. The Reasonable Expectation of Privacy: Advanced by the Court

provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person's general right to privacy—his right to be let alone by other people—is, like the protection of his property and of his very life, left largely to the law of the individual States.

Because of the misleading way the issues have been formulated, the parties have attached great significance to the characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously argued that the booth was a ‘constitutionally protected area.’ The Government has maintained with equal vigor that it was not. But this effort to decide whether or not a given ‘area,’ viewed in the abstract, is ‘constitutionally protected’ deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own 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. * * *

The Government contends, however, that the activities of its agents in this case should not be tested by Fourth Amendment requirements, for the surveillance technique they employed involved no physical penetration of the telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, for that Amendment was thought to limit only searches and seizures of tangible property. But ‘(t)he premise that property interests control the right of the Government to search and seize has been discredited.’ * * *

We conclude that the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the ‘trespass' doctrine there enunciated can no longer be regarded as controlling. The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.

The question remaining for decision, then, is whether the search and seizure conducted in this case complied with constitutional standards. * * * * Accepting this account of the Government's actions as accurate, it is clear that this surveillance was so narrowly circumscribed that a duly authorized magistrate, properly notified of the need for such investigation, specifically informed of the basis on which it was to proceed, and clearly apprised of the precise intrusion it would entail, could constitutionally have authorized, with appropriate safeguards, the very limited search and seizure that the Government asserts in fact took place. * * *

The Government urges that, because its agents relied upon the decisions in [previous cases], and because they did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do. It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. * * *

The Government does not question these basic principles. Rather, it urges the creation of a new exception to cover this case. It argues that surveillance of a telephone booth should be exempted from the usual requirement of advance authorization by a magistrate upon a showing of probable cause. We cannot agree.

Judgment reversed.

Mr. Justice MARSHALL took no part in the consideration or decision of this case.

Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN joins, concurring.

While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eavesdropping without a warrant in cases which the Executive Branch itself labels ‘national security’ matters.

Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate and prevent breaches of national security and prosecute those who violate the pertinent federal laws. * * *

There is, so far as I understand constitutional history, no distinction under the Fourth Amendment between types of crimes. Article III, gives ‘treason’ a very narrow definition and puts restrictions on its proof. But the Fourth Amendment draws no lines between various substantive offenses. * * *

Mr. Justice HARLAN, concurring.

* * * As the Court's opinion states, ‘the Fourth Amendment protects people, not places.’ The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a ‘place.’ My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable. Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable . * * *

[The earlier holding that] electronic surveillance accomplished without the physical penetration of petitioner's premises by a tangible object did not violate the Fourth Amendment * * * should now be overruled. Its limitation on Fourth Amendment protection is, in the present day, bad physics as well as bad law, for reasonable expectations of privacy may be defeated by electronic as well as physical invasion. * * *

Mr. Justice WHITE, concurring.

* * * In joining the Court's opinion, I note the Court's acknowledgment that there are circumstance in which it is reasonable to search without a warrant. In this connection, the Court points out that today's decision does not reach national security cases. (Footnote 23) Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant

procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

Mr. Justice BLACK, dissenting.

* * * My basic objection is twofold: (1) I do not believe that the words of the Amendment will bear the meaning given them by today's decision, and (2) I do not believe that it is the proper role of this Court to rewrite the Amendment in order ‘to bring it into harmony with the times' and thus reach a result that many people believe to be desirable.

While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses on such nebulous subjects as privacy, for me the language of the Amendment is the crucial place to look in construing a written document such as our Constitution. * * *

The first clause [of the Fourth Amendment] protects ‘persons, houses, papers, and effects, against unreasonable searches and seizures. * * * These words connote the idea of tangible things with size, form, and weight, things capable of being searched, seized, or both . The second clause of the Amendment still further establishes its Framers' purpose to limit its protection to tangible things by providing that no warrants shall issue but those ‘particularly describing the place to be searched, and the persons or things to be seized.’ A conversation overheard by eavesdropping, whether by plain snooping or wiretapping, is not tangible and, under the normally accepted meanings of the words, can neither be searched nor seized. In addition the language of the second clause indicates that the Amendment refers not only to something tangible so it can be seized but to something already in existence so it can be described. Yet the Court's interpretation would have the Amendment apply to overhearing future conversations which by their very nature are nonexistent until they take place. * * * Rather than using language in a completely artificial way, I must conclude that the Fourth Amendment simply does not apply to eavesdropping.

Tapping telephone wires, of course, was an unknown possibility at the time the Fourth Amendment was adopted. But eavesdropping (and wiretapping is nothing more than eavesdropping by telephone) was. * * * There can be no doubt that the Framers were aware of this practice, and if they had desired to outlaw or restrict the use of evidence obtained by eavesdropping, I believe that they would have used the appropriate language to do so in the Fourth Amendment. They certainly would not have left such a task to the ingenuity of language-‐stretching judges. * * *

Since I see no way in which the words of the Fourth Amendment can be construed to apply to eavesdropping, that closes the matter for me. In interpreting the Bill of Rights, I willingly go as far as a liberal construction of the language takes me, but I simply cannot in good conscience give a meaning to words which they have never before been thought to have and which they certainly do not have in common ordinary usage. I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ It was never meant that this Court have such power, which in effect would make us a continuously functioning constitutional convention.

With this decision the Court has completed, I hope, its rewriting of the Fourth Amendment, which started only recently when the Court began referring incessantly to the Fourth Amendment not so much as a law against unreasonable searches and seizures as one to protect an individual's privacy. * * * Thus,

by arbitrarily substituting the Court's language, designed to protect privacy, for the Constitution's language, designed to protect against unreasonable searches and seizures, the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court's broadest concept of privacy. * * * The Fourth Amendment protects privacy only to the extent that it prohibits unreasonable searches and seizures of ‘persons, houses, papers, and effects.’ No general right is created by the Amendment so as to give this Court the unlimited power to hold unconstitutional everything which affects privacy. Certainly the Framers, well acquainted as they were with the excesses of governmental power, did not intend to grant this Court such omnipotent lawmaking authority as that. The history of governments proves that it is dangerous to freedom to repose such powers in courts. For these reasons I respectfully dissent. ____________________ Footnote 23: Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

It is one thing to subject the average citizen to the risk that participants in a conversation with him will subsequently divulge its contents to another, but quite a different matter to foist upon him the risk that unknown third parties may be simultaneously listening in. (Justice Harlan, in dissent)

From: United States v. White, 401 U.S. 745; 91 S.Ct. 1122; 28 L.Ed.2d 453 (1971) __________________________________________

MR. JUSTICE WHITE announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN join.

[Note: Respondent White was convicted of having participated in various illegal narcotics transactions. White appealed on the ground that the Fourth Amendment barred from evidence the testimony of federal agents as to conversations between White and an informant, Jackson. Agents had overheard the conversations because Jackson agreed to wear a transmitter. Four conversations took place in Jackson's home; each of these conversations was overheard by an agent concealed in a kitchen closet with Jackson's consent, and by a second agent outside the house who used a receiver to pick up Jackson's transmissions. Using a transmitter carried by Jackson, agents also overheard four additional conversations, one in a restaurant, and two in Jackson's car.]

* * * [H]owever strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. In these circumstances, no interest legitimately protected by the Fourth Amendment is involved, for that amendment affords no protection to a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.

* * * For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by

others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.

Our problem is not what the privacy expectations of particular defendants in particular situations may be or the extent to which they may in fact have relied on the discretion of their companions. Very probably, individual defendants neither know nor suspect that their colleagues have gone or will go to the police or are carrying recorders or transmitters. Otherwise, conversation would cease and our problem with these encounters would be nonexistent or far different from those now before us. * * * Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would distinguish between probable informers on the one hand and probable informers with transmitters on the other. Given the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that the defendant's utterances would be substantially different or his sense of security any less if he also thought it possible that the suspected colleague is wired for sound. * * *

MR. JUSTICE DOUGLAS, dissenting.

The issue in this case is clouded and concealed by the very discussion of it in legalistic terms. What the ancients knew as "eavesdropping," we now call "electronic surveillance," but to equate the two is to treat man's first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveler of human privacy ever known. How most forms of it can be held "reasonable" within the meaning of the Fourth Amendment is a mystery. To be sure, the Constitution and Bill of Rights are not to be read as covering only the technology known in the 18th century. Otherwise its concept of "commerce" would be hopeless when it comes to the management of modern affairs. At the same time the concepts of privacy which the Founders enshrined in the Fourth Amendment vanish completely when we slavishly allow an all-‐powerful government, proclaiming law and order, efficiency, and other benign purposes, to penetrate all the walls and doors which men need to shield them from the pressures of a turbulent life around them and give them the health and strength to carry on. * * * Today no one perhaps notices because only a small, obscure criminal is the victim. But every person is the victim, for the technology we exalt today is everyman's master. * * *

There is a qualitative difference between electronic surveillance, whether the agents conceal the devices on their persons or in walls or under beds, and conventional police stratagems such as eavesdropping and disguise. The latter do not so seriously intrude upon the right of privacy. The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak. But as soon as electronic surveillance comes into play, the risk changes crucially. There is no security from that kind of eavesdropping, no way of mitigating the risk, and so not even a residuum of true privacy remains.* * *

Electronic aids add a wholly new dimension to eavesdropping. They make it more penetrating, more indiscriminate, more truly obnoxious to a free society. Electronic surveillance, in fact, makes the police omniscient; and police omniscience is one of the most effective tools of tyranny. * * *

Monitoring, if prevalent, certainly kills free discourse and spontaneous utterances. Free discourse-‐-‐a First Amendment value -‐-‐ may be frivolous or serious, humble or defiant, reactionary or revolutionary, profane or in good taste; but it is not free if there is surveillance. Free discourse liberates the spirit, though it may produce only froth. The individual must keep some facts concerning his thoughts within a small zone of people. At the same time he must be free to pour out his woes or inspirations or dreams to others. He remains the sole judge as to what must be said and what must remain unspoken. This is the essence of the idea of privacy implicit in the First and Fifth Amendments as well as in the Fourth. The philosophy of the value of privacy reflected in the Fourth Amendment's ban on "unreasonable searches and seizures" has been forcefully stated by a former Attorney General of the United States:

"Privacy is the basis of individuality. To be alone and be let alone, to be with chosen company, to say what you think, or don't think, but to say what you will, is to be yourself. Solitude is imperative, even in a high rise apartment. Personality develops from within. * * * Few conversations would be what they are if the speakers thought others were listening. Silly, secret, thoughtless and thoughtful statements would all be affected. The sheer numbers in our lives, the anonymity of urban living and the inability to influence things that are important are depersonalizing and dehumanizing factors of modern life. To penetrate the last refuge of the individual, the precious little privacy that remains, the basis of individual dignity, can have meaning to the quality of our lives that we cannot foresee. * * * If America permits fear and its failure to make basic social reforms to excuse police use of secret electronic surveillance, the price will be dear indeed. * * * " R. Clark, Crime in America 287 (1970).

MR. JUSTICE HARLAN, dissenting. * * * [I]t is one thing to subject the average citizen to the risk that participants in a conversation with him will subsequently divulge its contents to another, but quite a different matter to foist upon him the risk that unknown third parties may be simultaneously listening in. * * * The plurality opinion seeks to erase the crucial distinction between the facts before us and [our holdings in Lopez, Lewis, and Hoffa] by the following reasoning: if A can relay verbally what is revealed to him by B (as in Lewis and Hoffa), or record and later divulge it (as in Lopez), what difference does it make if A conspires with another to betray B by contemporaneously transmitting to the other all that is said? The contention is, in essence, an argument that the distinction between third-‐party monitoring and other undercover techniques is one of form and not substance. The force of the contention depends on the evaluation of two separable but intertwined assumptions: first, that there is no greater invasion of privacy in the third-‐party situation, and, second, that uncontrolled consensual surveillance in an electronic age is a tolerable technique of law enforcement, given the values and goals of our political system. The first of these assumptions takes as a point of departure the so-‐called "risk analysis" approach of Lewis and Lopez, * * * or the expectations approach of Katz. While these formulations represent an advance over the unsophisticated trespass analysis of the common law, they too have their limitations and can, ultimately, lead to the substitution of words for analysis. The analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk. Our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present.

Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement. * * *

This question must, in my view, be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual's sense of security balanced against the utility of the conduct as a technique of law enforcement. For [it is the] more extensive intrusions that significantly jeopardize the sense of security which is the paramount concern of Fourth Amendment liberties * * *

The impact of the practice of third-‐party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occasioned by the ordinary type of "informer" investigation * * * The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-‐party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.

Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-‐party bugging a prevalent practice, it might well smother that spontaneity -‐-‐ reflected in frivolous, impetuous, sacrilegious, and defiant discourse-‐-‐that liberates daily life. Much off-‐hand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener's inability to reformulate a conversation without having to contend with a documented record. All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant. * * *

Finally, it is too easy to forget -‐-‐and, hence, too often forgotten -‐-‐ that the issue here is whether to interpose a search warrant procedure between law enforcement agencies engaging in electronic eavesdropping and the public generally. By casting its "risk analysis" solely in terms of the expectations and risks that "wrongdoers" or "one contemplating illegal activities" ought to bear, the plurality opinion, I think, misses the mark entirely. * * * The very purpose of interposing the Fourth Amendment warrant requirement is to redistribute the privacy risks throughout society. * * * The interest [the plurality opinion] fails to protect is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days, months, or years after the conversation. Interposition of a warrant requirement is designed not to shield "wrongdoers," but to secure a measure of privacy and a sense of personal security throughout our society. * * *

This excerpt omits the opinions of MR. JUSTICE BRENNAN, concurring in the result, and MR. JUSTICE MARSHALL, dissenting.

But this approach raises the question of how tightly the fourth amendment permits people to be driven back into the recesses of their lives by the risk of surveillance.

From: Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minnesota Law Review 349 (1974) __________________________________________________

[NOTE: After a half-‐century of groundbreaking litigation, advocacy, writing, and constitutional scholarship, NYU Law School professor is justifiably an American legend: a death-‐penalty opponent, a litigant on behalf of Guantanamo inmates, a free-‐speech defender, and an innovator in developing effective and practical law school teaching methods. Transcribed from a series of presentations given at the University of Minnesota Law School in January 1974, Professor Amsterdam’s “Perspectives on the Fourth Amendment,” continues to be one of the most influential and most cited articles in American jurisprudence. Witty and practical, “Perspectives” is also known for the beauty of its language, with key segments quoted appreciatively by Justice Brennan, dissenting in Florida v. Riley, 488 U.S. 445 (1989).]

I can think of few constitutional issues more important than defining the reach of the fourth amendment. * * * [L]et me present it to you in another form: I can think of few issues more important to a society than the amount of power that it permits its police to use without effective control by law. * * *

[The] Court's traditional approach to determining whether a particular police practice lay within the ambit of the fourth amendment was to ask two successive questions. Was the practice a "search" or "seizure"? Did it invade the constitutionally protected area of some person, house, paper or effect? If the answer to either question was no, the amendment was inapplicable * * * [T]he Court early said that * * a physical intrusion of some sort was required. The maxim that the eye or ear could not commit a search, of course, harked back to English common law and had been mentioned by Lord Camden in his celebrated judgment in Entick v. Carrington," which has always been justly received as something of a lexicon of the "original understanding" of the fourth amendments." Also quite early, the Supreme Court held that even a physical trespass upon an owner's "open fields" was not within the coverage of the amendments, thereby spawning a body of law that involved such concepts as "curtilage" and concerned

II. The Reasonable Expectation of Privacy: Examined in Legal Scholarship

itself with determining whether a particular sort of "area [was] immunized by the Constitution from unreasonable search and seizure." The interaction of these two limitations upon the operation of the fourth amendment is seen most dearly in the 1928 Olmstead decision, holding telephone wiretapping outside the reach of the amendment. The Court's reasoning was straightforward: eavesdropping upon a phone conversation was neither a "search" nor a "seizure" because the ear cannot commit a search or seizure, and the tap of the telephone wire was not an intrusion into any area protected by the Constitution in favor of the phone owner, because those "wires are not part of his house or office any more than are the highways along which they are stretched." * * * But there was considerable dissatisfaction with Olmstead among the Justices, and the process of whittling it away began in 1961 when the Court found that the fourth amendment covered electronic monitoring of conversations within a house by officers who inserted a spike-‐mike into a party wall and struck a heating duct. [Silverman v. United States, 365 U.S. 505 (1961)]. The case went off on "physical penetration into the premises," and the Court found no necessity to reconsider Olmstead. * * * Fourth amendment Court-‐watchers began waiting for the other shoe to fall. It fell in Katz v. United States. * * * [The Katz decision had] extraordinary character and implications. The case is, of course, now generally recognized as seminal and has rapidly become the basis of a new formula of fourth amendment coverage. The formula is that "wherever an individual may harbor a reasonable 'expectation of privacy,' . . . he is entitled to be free from unreasonable governmental intrusion." Notwithstanding the Supreme Court's several repetitions of this formula or variations of it, and notwithstanding even its apparent acceptance by Mr. Justice Stewart (the author of the Katz opinion), I believe that it destroys the spirit of Katz and most of Katz's substance. Let us start with the seemingly harmless substitution of the phrase "governmental intrusion" for the finding in Katz that the government had "violated" Katz's interests. If the word "intrusion" is used, as "violated" plainly was, to mean only that interests protected by the fourth amendment have been defeated by the "Government's activities,"I have no quarrel with it. The problem with the word lies in its subtle suggestion that a particular kind or sort of government activity, labeled an "intrusion," is necessary to trigger the fourth amendment’s protection. But this, in my view, was precisely the approach to fourth amendment coverage that Katz decisively rejected. The entire thrust of the opinion is that it is needless to ask successively whether an individual has the kind of interest that the fourth amendment protects and whether that interest is invaded by a kind of governmental activity characterizable by its attributes as a "search." Rather, a "search" is anything that invades interests protected by the amendments. It is only upon this assumption that the underpinnings of Olmstead could have been thought to be eroded by intervening decisions which recognized protection for interests that Olmstead held unprotected, but did not (as Katz did) involve the invasion of those interests by other means than physical trespass. Katz, in other words returned to the grand conception of Boyd v. United States. * * * Katz held, as Boyd had, that whatever "is a material ingredient, and affects the sole object and purpose of search and seizure" is a search and seizure in the only sense that the Constitution demands. Now let us consider the word "expectation" in the "reasonable expectation of privacy" formula to which Katz is speedily being reduced. "Expectation" is not a term used in Mr. Justice Stewart's majority opinion

in Katz; it has been lifted by subsequent cases from Mr. Justice Harlan's concurring opinion, where it is used to mean "an actual (subjective) expectation of privacy . . . that society is prepared to recognize as 'reasonable.'" But Mr. Justice Harlan himself later expressed second thoughts about this conception, and rightly so. An actual, subjective expectation of privacy obviously has no place in a statement of what Katz held or in a theory of what the fourth amendment protects. It can neither add to, nor can its absence detract from, an individual's claim to fourth amendment protection. If it could, the government could diminish each person's subjective expectation of privacy merely by announcing half-‐hourly on television that 1984 was being advanced by a decade and that we were all forthwith being placed under comprehensive electronic surveillance. * * * For myself, I have had no actual, subjective expectation of privacy in my telephone, my office or my home since I began handling civil rights cases in the early 1960's. * * * Even if every police agency in this country reduced its electronic surveillance by 10 or 15 percent, * * * we would still have an extremely slim basis for much actual expectation of privacy. Fortunately, neither Katz nor the fourth amendment asks what we expect of government. They tell us what we should demand of government. Finally, it is plainly wrong to capsulate Katz into a comprehensive definition of fourth amendment coverage in terms of "privacy." Katz holds that the fourth amendment protects certain privacy interests, but not that those interests are the only interests which the fourth amendment protects. * * As a doctrinal matter, it seems clear that the effect of Katz is to expand rather than generally to reconstruct the boundaries of fourth amendment protection. * * * The fourth amendment is not limited to protection against physical trespass, although the pre-‐constitutional history of the amendment was concerned with trespasses. "Searches" are not particular methods by which government invades constitutionally protected interests: they are a description of the conclusion that such interests have been invaded. The key to the amendment is the question of what interests it protects. Mr. Katz's conversation in a pay telephone booth was protected because he "justifiably relied" upon its being protected -‐-‐ relied, not in the sense of an expectation, but in the sense of a claim of right. In the end, the basis of the Katz decision seems to be that the fourth amendment protects those interests that may justifiably claim fourth amendment protection. Of course this begs the question. But I think it begs the question no more or less than any other theory of fourth amendment coverage that the Court has used. * * * [T]he police engage in a vast range of activities affecting a broad spectrum of citizens' interests in a complex variety of ways. * * * Legislative and executive limitation of the practices has been "minor to the point of nonexistence." The consequence has been * * * that the Supreme Court is strongly cautioned to keep its contours fluid, so as to maintain extensibility over the unexpected. In simpler terms, the Court never knows what the police will come up with next. In recent years, of course, rapid technological advances and the consequent recognition of the "frightening paraphernalia which the vaunted marvels of an electronic age may visit upon human society "have underlined the possibility of worse horrors yet to come. * * * Police practices * * * are a perpetual Pandora's box. It demands a great deal of the Court to ask that it develop coherent principles for the definition of "searches" and "seizures" without knowing what is going to come out of that box in Meridian, Mississippi, or New York City tomorrow. The second problem in developing such principles arises from a complicated relationship between the scope of coverage of the fourth amendment and the protections that it affords in the areas that it

covers. We can begin to see this problem if we return for a moment to the Katz case. * * * [Concluding] that a warrant could have been issued authorizing what the agents did, the Court held their surveillance unconstitutional for want of a warrant. This, of course is, nothing more or less than the familiar fourth amendment warrant requirement, but I hope that its familiarity will not cause you to overlook the implications of its imposition here. Having once held that a telephone booth was protected by the fourth amendment against non-‐trespassory electronic surveillance, the Court proceeded to require the same justifications for that surveillance as would be required before an officer could go barging into Katz's bedroom. [T]his result does not surprise me or seem wrong. The insidious, far-‐reaching and indiscriminate nature of electronic surveillance—and, most important, its capacity to choke off free human discourse that is the hallmark of an open society—makes it almost, although not quite, as destructive of liberty as "the kicked-‐in door." * * * But the Court's opinion in Katz says nothing about the particularly repressive characteristics of electronic surveillance; it simply takes up the warrant requirement from the dwelling-‐entry cases and applies it routinely to the bugging of a public telephone booth. The same approach is taken throughout the fourth amendment cases generally: searches of garages within the "curtilage" of a dwelling or of automobiles parked in the driveway, for example, are subject to the identical warrant requirement as searches of the dwelling itself. The fourth amendment, then, is ordinarily treated as a monolith: wherever it restricts police activities at all, it subjects them to the same extensive restrictions that it imposes upon physical entries into dwellings." To label any police activity a "search" or "seizure" within the ambit of the amendment is to impose those restrictions upon it. On the other hand, if it is not labeled a "search" or "seizure," it is subject to no significant restrictions of any kind. It is only "searches" or "seizures" that the fourth amendment requires to be reasonable: police activities of any other sort may be as unreasonable as the police please to make them. Obviously, this kind of all-‐or-‐nothing approach to the amendment puts extraordinary strains upon the process of drawing its outer boundary lines. * * * Why should not the protections of the amendment be graduated, imposing lesser or greater restraints upon searches and seizures in proportion to their intrusiveness and to the sanctity of the interests they invade? * * * [The recently-‐decided cases Terry v. Ohio and Schmerber v. California] might support a general fourth amendment theory that increasing degrees of intrusiveness require increasing degrees of justification and increasingly stringent procedures for the establishment of that justification. The upshot would be to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness. The implications of this approach can fairly be described as staggering, and some of them even seem to me good. * * * [T]he requirements of a warrant and of probable cause might be supplemented by additional protections in cases of the gravest intrusions upon those interests. * * * A sliding scale approach would considerably ease the strains that the present monolithic model of the fourth amendment almost everywhere imposes on the process of defining the amendment's outer boundaries. * * * As a general matter, courts working with a graduated model of the fourth amendment would and should approach questions of its coverage with the disposition to extend it so as to find in the amendment—as Mr. Justice Brennan once urged in dissent —"nothing less than a comprehensive right

of personal liberty in the face of governmental intrusion." The question of what constitutes a covered "search" or "seizure" would and should be viewed with an appreciation that to exclude any particular police activity from coverage is essentially to exclude it from judicial control and from the command of reasonableness, whereas to include it is to do no more than say that it must be conducted in a reasonable manner. * * * The problem with the graduated model, of course, is [that] it converts the fourth amendment into one immense Rorschach blot. The complaint is being voiced now that fourth amendment law is too complicated and confused for policemen to understand or to obey. Yet present law is a positive paragon of simplicity compared to what a graduated fourth amendment would produce. The varieties of police behavior and of the occasions that call it forth are so innumerable that their reflection in a general sliding scale approach could only produce more slide than scale. * * * And as Mr. Justice Jackson reminded us, "the extent of any privilege of search and seizure without warrant which we sustain, the officers interpret and apply themselves and will push to the limit." * * * So the Court confronts a dilemma. On the one hand, maintenance of the traditional monolithic model of the fourth amendment makes decisions regarding the boundaries of its coverage excruciatingly difficult. Police practices that cry for some form of constitutional control but not the control of a warrant or a probable cause requirement must be dubbed "searches" and over-‐restricted or dubbed something other than searches and left completely unrestricted. On the other hand, to subject them to fourth amendment control but exempt them from the warrant or probable cause requirements would threaten the integrity of the structure of internal fourth amendment doctrines. * * * The third and fourth problems in developing a satisfactory general theory of the fourth amendment's scope can be stated in one sentence. Its language is no help and neither is its history. * * * The plain meaning of the English language would surely not be affronted if every police activity that involves seeking out crime or evidence of crime were held to be a search. When the policeman shines his flashlight in the parked car or listens at the tenement door, what else is he doing than searching? * * * Unless history restricts the amplitude of language, no police investigative activity can escape the fourth amendment's grasp. To Mr. Justice Frankfurter we owe the observation, and the firmest insistence on the principle, that "the meaning of the Fourth Amendment must be distilled from contemporaneous history." * * * [T]hat history teaches three great lessons. The first is that the amendment is not "a kind of nuisance, a serious impediment in the war against crime" or "an outworn bit of Eighteenth Century romantic rationalism but an indispensable need for a democratic society." The second is that the amendment's basic concern is to protect the people "against search and seizure by the police, except under the closest judicial safeguards." * * * The power asserted by the English messengers and colonial customs officers and condemned by history was "a discretionary power . . . to search wherever their suspicions may chance to fall, a power that places the liberty of every man in the hands of every petty officer." The third lesson is that the principal check designed against the arbitrary discretion of executive officers to search and seize was the requirement of a "search warrant exacting in its foundation and limited in scope." * * * [So] we are necessarily brought back to the [question] whether the specific historical experiences that preceded the adoption of the amendment—the conflicts over trespassory ransackings under general warrants in England and writs of assistance in the colonies—ought to be taken as the measure of the evils that the fourth amendment curbs? Or should we say at least that practices such as

eavesdropping and the use of spies, known at the time of those conflicts but not implicated in them, should be held beyond the reach of the amendment? * * * Indisputably the "searches and seizures" on the agenda at the time the fourth amendment was written were the rummagings of the English messengers and colonial customs officers. We can reconstruct with some fair confidence what "the framers" thought of those. It is illusory to suppose that we can know what they thought of anything else. * * * What we do know, because the language of the fourth amendment says so, is that the framers were disposed to generalize to some extent beyond the evils of the immediate past. No other view is possible in light of the double-‐barreled construction of the amendment. The second clause, requiring probable cause and particularity in the issuance of warrants, was alone quite sufficient to forbid the general warrants and the writs of assistance that had been the exclusive focus of the pre-‐ constitutional history. But the framers went further. They added—not to diminish, as Justice Frankfurter reminds us, but to expand the warrant clause—a wide provision that the people should be secure in their persons, houses, papers and effects against unreasonable searches and seizures. * * * Growth is what statesmen expect of a Constitution. Those who wrote and ratified the Bill of Rights had been through a revolution and knew that times change. They were embarked on a perilous course toward an uncertain future and had no comfortable assurance what lay ahead. * * * The revolutionary statesmen were plainly and deeply concerned with losing liberty. That is what the Bill of Rights is all about. * * * [T[he authors of the Bill of Rights had known oppressive government. I believe they meant to erect every safeguard against it. I believe they meant to guarantee to their survivors the right to live as free from every interference of government agents as our condition would permit. And, to this end, it seems to me that the guarantee against unreasonable "searches and seizures" was written and should be read to assure that any and every form of such interference is at least regulated by fundamental law so that it may be "restrained within proper bounds." * * * And, of course, if we wanted to take exclusive counsel of the framers on the problems of our time, we could not do so. Technological advances—well, let me say technological developments—such as electronic surveillance devices dramatize the point but do not exhaust it. Miniscule microphones are not the only wonder of our lives that the framers did not know. * * * [T]hey also did not know the increased dangers of crime in an automated age: the perils of bombs in buildings and planes, the speed and devastating effect with which modern machinery can bring evil intentions to destructive conclusions, the harms and depredations that a man cloistered in his home can work if he has a telephone. * * * And so, while we may treasure their values, we cannot have the assistance of their wisdom upon our predicaments: we must struggle over those predicaments as best we can by our own lights. * * * In the context of [our] urbanized and heterogeneous society, decisions regarding the kinds of interests that deserve constitutional protection rest upon value judgments which are exquisitely difficult for the committee of the Supreme Court to make, and even more difficult for it to express in terms of administrable doctrinal concepts. * * * It is possible to argue, certainly, that the fourth amendment should not be extended to cover "surveillance against which the scrutinee can readily protect himself by closing . . . shutters" or keeping his voice down. But this approach raises the question of how tightly the fourth amendment permits people to be driven back into the recesses of their lives by the risk of surveillance. Mr. Katz could, of course, have protected himself against surveillance by forbearing to use the phone; and—so far as I am

presently advised of the state of the mechanical arts —anyone can protect himself against surveillance by retiring to the cellar, cloaking all the windows with thick caulking, turning off the lights and remaining absolutely quiet. This much withdrawal is not required in order to claim the benefit of the amendment because, if it were, the amendment's benefit would be too stingy to preserve the kind of open society to which we are committed and in which the amendment is sup-‐posed to function. What kind of society is that? Is it one in which a homeowner is put to the choice of shuttering up his windows or of having a policeman look in? * * * The question is not whether you or I must draw the blinds before we commit a crime. It is whether you and I must discipline ourselves to draw the blinds every time we enter a room, under pain of surveillance if we do not. I have no doubt a court should say that any type of surveillance which can be averted only by this drastic discipline, characteristic of life under totalitarian regimes, is altogether too destructive of privacy and of the "right of the people to be secure in their persons [and] . . . houses" to escape the fourth amendment's regulation. But where and how is a court to draw the line? How much freedom may the citizen exercise and still retain privacy? * * * The ultimate question, plainly, is a value judgment. It is whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society. That, in outright terms, is the judgment lurking underneath the Supreme Court's decision in Katz, and it seems to me the judgment that the fourth amendment inexorably requires the Court to make. But it is a devastating question to put to a committee. And it is a perfectly impossible question for the Supreme Court to put forth as a test of fourth amendment coverage. It is impossible because, in the first and most important instance, the fourth amendment speaks to the police and must speak to them intelligibly. How in the devil is a policeman engaged in an investigation supposed to decide whether the form of surveillance that he proposes to use, if not restricted by the fourth amendment, would curtail the liberties of citizens to a compass inconsistent with a free society? And, even if that were a question that a policeman could practicably answer, I would frankly not want the extent of my freedom to be determined by a policeman's answer to it. So it is understandable that the ultimate question asked and answered in Katz should shortly be transmuted into something like the post-‐Katz "reasonable expectation of privacy" formula. That formula is an inevitable first step in the direction of administrability. But [it] is still much too vague to be administered on the streets. * * * The problem began, I think, when the simplification of Katz began, in terms of categorical concepts such as "privacy." People who live in single houses or well-‐insulated apartments tend to take a rather parochial view of privacy. Because we are accustomed to having something approaching absolute privacy when we lock our outer doors, we tend to conceive of privacy as an absolute phenomenon and to denigrate the importance of degrees of privacy. * * * [I]t seems to me that the analysis of [surveillance] cases in terms of voluntary assumption of risk is wildly beside the point. The fact that our ordinary social intercourse, uncontrolled by government, imposes certain risks upon us hardly means that government is constitutionally unconstrained in adding to those risks. * * * [I]t is it is not betrayal against which the fourth amendment protects us: [what the constitution protects] is the privacy of a free people living free lives. It is rather too late in the game to

dispute that that privacy includes the privacy of communicative relationships with others; Mr. Katz was in a telephone booth, not a water closet. * * * I can see no significant difference between police spies, bugged or un-‐bugged, and electronic surveillance, either in their uses or abuses. Both have long been asserted by law enforcement officers to be indispensable tools in investigating crime, particularly victimless and political crime, precisely because they both search out privacies that government could not otherwise invade. Both tend to repress crime in the same way, by making people distrustful and unwilling to talk to one another. * * * In an age where our shrinking privacy and liberty would otherwise be enjoyable only at the sufferance of expanding, militaristically organized bodies of professional police, the fourth amendment demands that an independent judiciary play a direct, strong role in their regulation. Mr. Justice Holmes * * * brought to the interpretation of the Constitution a profound insight into the enduring values of our heritage, together with the greatness of imagination that is needed to preserve them, not as sainted relics, but as principles of growth for the self-‐government of a free people. "[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States," he wrote,

[W]e must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.

I would beg the grace of that same vision for the fourth amendment.

For privacy is the necessary context for relationships which we would hardly be human if we had to do without—the relationships of love, friendship and trust.

From: Charles Fried, Privacy, 77 Yale L.J. 475 (1968) ________________________________________

[Note: Published in the immediate aftermath of the Katz decision, Charles Fried’s articulation of the value of privacy (“the necessary context for relationships which we would hardly be human if we had to do without -‐-‐ the relationships of love, friendship and trust”) offered a perspective that continues to inform judicial thinking and legislative policy-‐making. Moreover, “Privacy” introduced what would be Professor Fried’s lifelong exploration of the ties between law and moral philosophy, whether in Anatomy of Values (1970), Right and Wrong (1978), or Because It Is Wrong (2010). Subtitled Torture, Privacy, and Presidential Power in the Age of Terror, Because It Is Wrong permitted Professor Fried to examine once again the issues of privacy and ethics, this time in a 21st century context – the society produced by a government that “eavesdropped and continues to eavesdrop to an unimaginable degree on words and signals so numerous that a word [yottabites] was invented to count it.” A symposium presenter, Professor Fried continues to be one of the great legal thinkers of our time.]

Privacy has become the object of considerable concern. The purely fortuitous intrusions inherent in a compact and interrelated society have multiplied. The more insidious intrusions of increasingly sophisticated scientific devices into previously untouched areas, and the burgeoning claims of public and private agencies to personal information, have created a new sense of urgency in defense of privacy. * * * The purpose of this essay is not to add yet another concrete proposal, nor even to call attention to yetanother intrusion upon privacy. Rather I propose to examine the foundations of the right of privacy—the reasons why men feel that invasions of that right injure them in their very humanity.

I.

* * * There are available today electronic devices to be worn on one's person which emit signals permitting one's exact location to be determined by a monitor some distance away. 1 These devices are so small as to be entirely unobtrusive: other persons cannot tell that a subject is “wired,” and even the

subject himself—if he could forget the initial installation—need be no more aware of the device than of a small bandage. Moreover, existing technology can produce devices capable of monitoring not only a person's location, but other significant facts about him: his temperature, pulse rate, blood pressure, the alcoholic content of his blood, the sounds in his immediate environment— e.g., what he says and what is said to him—and perhaps in the not too distant future even the pattern of his brain waves. * * *

II.

Much of the discussion about this and similar (though perhaps less futuristic) measures has proceeded in a fragmentary way to catalogue the disadvantages they entail: the danger of the information falling into the wrong hands, the opportunity presented for harassment, the inevitable involvement of persons as to whom no basis for supervision exists, the use of the material monitored by the government for unauthorized purposes, the danger to political expression and association, and so on. Such arguments are often sufficiently compelling, but situations may be envisaged where they are overridden. * * * And yet one often wants to say the invasion of privacy is wrong, intolerable, although each discrete objection can be met. The reason for this, I submit, is that privacy is much more than just a possible social technique for assuring this or that substantive interest. * * *

It is my thesis that privacy is not just one possible means among others to insure some other value, but that it is necessarily related to ends and relations of the most fundamental sort: respect, love, friendship and trust. Privacy is not merely a good technique for furthering these fundamental relations; rather without privacy they are simply inconceivable. They require a context of privacy or the possibility of privacy for their existence. To make clear the necessity of privacy as a context for respect, love, friendship and trust is to bring out also why a threat to privacy seems to threaten our very integrity as persons. To respect, love, trust, feel affection for others and to regard ourselves as the objects of love, trust and affection is at the heart of our notion of ourselves as persons among persons, and privacy is the necessary atmosphere for these attitudes and actions, as oxygen is for combustion.

III.

* * * Love, friendship and trust are not just vague feelings or emotions; they each comprise a system of dispositions, beliefs and attitudes which are organized according to identifiable principles. Though love, friendship and trust differ from each other, they each build on a common conception of personality and its entitlements. This conception is a moral conception of the basic entitlements and duties of persons in regard to each other, and the structure of that conception is articulated by what I call the principle of morality and the correlative attitude of respect.

* * * The principle of morality does not purport to represent the highest value in a person's economy of values and interests. * * * It functions rather as a constraint upon systems and orderings of values and interests , demanding that whatever their content might be, they may be pursued only if and to the extent that they are consistent with an equal right of all persons to a similar liberty to pursue their interests, whatever they might be. Thus the principle of morality, far from representing a complete system of values, establishes only the equal liberty of each person to define and pursue his values free from undesired impingements by others. * * *

Correlative to this view of morality—and indeed to any view which recognizes moral entitlements in persons—is the concept of respect.6 Respect is the attitude which is manifested when a person observes the constraints of the principle of morality in his dealings with another person, and thus

respects the basic rights of the other. Respect is also an attitude which may be taken in part as defining the concept of a person: persons are those who are obliged to observe the constraints of the principle of morality in their dealings with each other, and thus to show respect towards each other. * * * [A]n essential part of the morality which underlies these relations is the constraint of respect for the privacy of all, by state and citizen alike.

IV.

* * The respect required by morality is a necessary condition for love; it is not sufficient. The further element in love is a spontaneous relinquishment of certain entitlements of one's own to the beloved, a free and generous relinquishment inspired by a regard which goes beyond impartial respect. But a sense of freedom and generosity depends—logically depends—on a sense of the secure possession of the claims one renounces and the gifts one bestows. * * * [T]he nature of the gifts of love and friendship is such that privacy is necessary to provide one important aspect of security.

* * * Persons love, hoping to be loved in return, and thus the fulfilled form of the relationship is one of mutual relinquishment of entitlement, but not simply of relinquishment. The fulfilled form is the mutual relinquishment of rights in favor of new, shared interests which the lovers create and value as the expression of their relationship. Thus love is an active and creative relationship not only of reciprocal relinquishment but reciprocal support as well. * * * [T]he relinquishment, is logically prior to the relationship which requires it; and if privacy is necessary to the first, it is necessary to the second.

* * * Although trust has to do with reliance on a disposition of another person, it is reliance on a disposition of a special sort: the disposition to act morally, to deal fairly with others, to live up to one's undertakings, and so on. Thus to trust another is first of all to expect him to accept the principle of morality in his dealings with you, to respect your status as a person, your personality.

Trust, like love and friendship, is in its central sense a relation: it is reciprocal. * * * Thus not only can a thoroughly untrustworthy person not be trusted; he cannot trust others, for he is disabled from entering into the relations of voluntary reciprocal forbearance for mutual advantage which trust consists of. * * *

Trust is like love and friendship in that it is a “free” relationship. Morality does not require that we enter into relations of trust with our fellow men. But trust differs from love or friendship in that it is not always a relation we seek simply for its own sake. It is more functional. Persons build relations on trust in part because such relations are useful to accomplish other ends. * * * However, the other ends never dominate entirely: they may be attainable without genuine trust, and the recourse to trust is then an independent and concurrent affirmation of respect for human personality. So, whether as individuals or as states, we conduct our business when we can on the basis of trust, not just because it is more efficient to do so—it may not be— but because we value the relations built on trust for their own sake. * * *

V.

Privacy is closely implicated in the notions of respect and self-‐respect, and of love, friendship and trust. Quite apart from any philosophical analysis this is intuitively obvious * * * [I]n developed social contexts love, friendship and trust are only possible if persons enjoy and accord to each other a certain measure of privacy.

* * * As a first approximation, privacy seems to be related to secrecy, to limiting the knowledge of others about oneself. This notion must be refined. * * * Privacy is not simply an absence of information about us in the minds of others; rather it is the control we have over information about ourselves. * * * The person who enjoys privacy is able to grant or deny access to others. Even when one considers private situations into which outsiders could not possibly intrude, the context implies some alternative situation where the intrusion is possible. * * *

VI.

There are reasons other than its relation to love, friendship and trust why we value privacy. Most obviously, privacy in its dimension of control over information is an aspect of personal liberty. Acts derive their meaning partly from their social context—from how many people know about them and what the knowledge consists of. * * * Besides giving us control over the context in which we act, privacy has a more defensive role in protecting our liberty. We may wish to do or say things not forbidden by the restraints of morality, but which are nevertheless unpopular or unconventional. * * *

These reasons support the familiar arguments for the right of privacy. Yet they leave privacy with less security than we feel it deserves; they leave it vulnerable to arguments that a particular invasion of privacy will secure to us other kinds of liberty which more than compensate for what is lost. To present privacy then, only as an aspect of or an aid to general liberty, is to miss some of its most significant differentiating features. * * * For privacy is the necessary context for relationships which we would hardly be human if we had to do without—the relationships of love, friendship and trust.

* * * To be friends or lovers persons must be intimate to some degree with each other. But intimacy is the sharing of information about one's actions, beliefs, or emotions which one does not share with all, and which one has the right not to share with anyone. By conferring this right, privacy creates the moral capital which we spend in friendship and love.

The entitlements of privacy are not just one kind of entitlement among many which a lover can surrender to show his love. Love or friendship can be partially expressed by the gift of other rights—gifts of property or of service. But these gifts, without the intimacy of shared private information, cannot alone constitute love or friendship. The man who is generous with his possessions, but not with himself, can hardly be a friend, nor—and this more clearly shows the necessity of privacy for love—can the man who, voluntarily or involuntarily, shares everything about himself with the world indiscriminately. * * *

Privacy grants the control over information which enables us to maintain degrees of intimacy. Thus even between friends the restraints of privacy apply; since friendship implies a voluntary relinquishment of private information, one will not wish to know what his friend or lover has not chosen to share with him. The rupture of this balance by a third party— the state perhaps—thrusting information concerning one friend upon another might well destroy the limited degree of intimacy the two have achieved.

Finally, there is a more extreme case where privacy serves not to save something which will be “spent” on a friend, but to keep it from all the world. * * * That is because these thoughts, prior to being given expression, are mere unratified possibilities for action. Only by expressing them do we adopt them, choose them as part of ourselves, and draw them into our relations with others. * * * Thus this most complete form of privacy is perhaps also the most basic, as it is necessary not only to our freedom to define our relations to others but also to our freedom to define ourselves. To be deprived of this control

not only over what we do but over who we are is the ultimate assault on liberty, personality, and self-‐respect. * * *

There can be no trust where there is no possibility of error. More specifically, a man cannot know that he is trusted unless he has a right to act without constant surveillance so that he knows he can betray the trust. Privacy confers that essential right. And since trust in its fullest sense is reciprocal, the man who cannot be trusted cannot himself trust or learn to trust. Without privacy and the possibility of error which it protects that aspect of his humanity is denied to him.

VII.

* * * As is true for property or bodily security, the control over privacy must be limited by the rights of others. And as in the cases of property and bodily security, so too with privacy the more one ventures into the outside, the more one pursues one's other interests with the aid of, in competition with, or even in the presence of others, the more one must risk invasions of privacy. Moreover, as with property and personal security, it is the business of legal and social institutions to define and protect the right of privacy which emerges intact from the hurly-‐burly of social interactions.* * *

Convention plays another more important role in fostering privacy and the respect and esteem which it protects; it designates certain areas, intrinsically no more private than other areas, as symbolic of the whole institution of privacy, and thus deserving of protection beyond their particular importance. This apparently exaggerated respect for conventionally protected areas compensates for the inevitable fact that privacy is gravely compromised in any concrete social system: it is compromised by the inevitably and utterly just exercise of rights by others, it is compromised by the questionable but politically sanctioned exercise of rights by others, it is compromised by conduct which society does not condone but which it is unable or unwilling to forbid, and it is compromised by plainly wrongful invasions and aggressions. In all this hurly-‐burly there is a real danger that privacy might be crushed altogether, or what would be as bad, that any venture outside the most limited area of activity would mean risking an almost total compromise of privacy.

Given these threats to privacy in general, social systems have given symbolic importance to certain conventionally designated areas of privacy. Thus in our culture the excretory functions are shielded by more or less absolute privacy, so much so that situations in which this privacy is violated are experienced as extremely distressing, as detracting from one's dignity and self-‐esteem. * * * There are other more subtly modulated symbolic areas of privacy, some of which merge into what I call substantive privacy (that is, areas where privacy does protect substantial interests). The very complex norms of privacy about matters of sex and health are good examples.

An excellent, very different sort of example of a contingent, symbolic recognition of an area of privacy as an expression of respect for personal integrity is the privilege against self-‐incrimination and the associated doctrines denying officials the power to compel other kinds of information without some explicit warrant. By according the privilege as fully as it does, our society affirms the extreme value of the individual's control over information about himself. * *

In calling attention to the symbolic aspect of some areas of privacy I do not mean to minimize their importance. On the contrary, they are highly significant as expressions of respect for others in a general situation where much of what we do to each other may signify a lack of respect or at least presents no occasion for expressing respect. That this is so is shown not so much in the occasions where these

symbolic constraints are observed, for they are part of our system of expectations, but where they are violated.25 Not only does a person feel his standing is gravely compromised by such symbolic violations, but also those who wish to degrade and humiliate others often choose just such symbolic aggressions and invasions on the assumed though conventional area of privacy.

VIII.

Let us return now to the concrete problem of electronic monitoring to see whether the foregoing elucidation of the concept of privacy will help to establish on firmer ground the intuitive objection that monitoring is an intolerable violation of privacy. Let us consider the more intrusive forms of monitoring where not only location but conversations and perhaps other data are monitored.

Obviously such a system of monitoring drastically curtails or eliminates altogether the power to control information about oneself. * * * But this retort misses the importance of privacy as a context for all kinds of relations, from the most intense to the most casual. For all of these may require a context of some degree of intimacy, and intimacy is made impossible by monitoring. * * *

Privacy is not, as we have seen, just a defensive right. It rather forms the necessary context for the intimate relations of love and friendship which give our lives much of whatever affirmative value they have. In the role of citizen or fellow worker, one need reveal himself to no greater extent than is necessary to display the attributes of competence and morality appropriate to those relations. In order to be a friend or lover, one must reveal far more of himself. Yet where any intimate revelation may be heard by monitoring officials, it loses the quality of exclusive intimacy required of a gesture of love or friendship. Thus monitoring, in depriving one of privacy, destroys the possibility of bestowing the gift of intimacy, and makes impossible the essential dimension of love and friendship.

Monitoring similarly undermines the subject's capacity to enter into relations of trust. * * * As I analyzed trust, it required the possibility of error on the part of the person trusted. The negation of trust is constant surveillance—such as monitoring—which minimizes the possibility of undetected default. * * *

Monitoring, by contrast, alters only in a subtle and unobtrusive way —though a significant one—the context for relations. The subject appears free to perform the same actions as others and to enter the same relations, but in fact an important element of autonomy, of control over one's environment is missing: he cannot be private. * * * A person subject to monitoring by virtue of being in a free environment, dealing with people who expect him to have certain responses, capacities and dispositions, is forced to make at least a show of intimacy to the persons he works closely with, those who would be his friends, and so on. They expect these things of him, because he is assumed to have the capacity and disposition to enter into ordinary relations with them. Yet if he does * * * he has been forced to violate his own integrity by being forced to reveal to his official monitors even so small an aspect of his private personality, the personality he wishes to reserve for persons towards whom he will make some gestures of intimacy and friendship. * * *

Finally, the insidiousness of a technique which forces a man to betray himself in this humiliating way or else seem inhuman is compounded when one considers that the subject is also forced to betray others who may become intimate with him * * *

IX.

* * * Clearly many of the social structures by which persons express their respect for the privacy of others are informal and implicit. The sanctions for violating the expectations set up by these structures, if they exist at all, are often subtle and informal too. But legal rules also play a large part in establishing the social context of privacy. These rules guarantee to a person the claim to control certain areas, his home, perhaps his telephone communications, etc., and back this guarantee with enforceable sanctions. * * *

The concept of privacy requires, as we have seen, a sense of control and a justified, acknowledged power to control aspects of one's environment. But in most developed societies the only way to give a person the full measure of both the sense and the fact of control is to give him a legal title to control. A legal right to control is control which is the least open to question and argument; it is the kind of control we are most serious about. As we have seen, privacy is not just an absence of information abroad about ourselves; it is a feeling of security in control over that information. By using the public, impersonal and ultimate institution of law to grant persons this control, we at once put the right to control as far beyond question as we can and at the same time show how seriously we take that right.

We have constructed sprawling, burgeoning urban areas that force people to live in small cubicles embedded in ugly vertical structures, travel in congested mass transit systems, and work in buildings designed primarily to produce assembly-‐line efficiency.

From: Arthur R. Miller. The Assault on Privacy: Computers, Data Banks, and Dossiers (1971) __________________________________________

[Note: In a 2012 encomium, Judge Alex Kozinski describes Professor Miller’s book as a “seminal masterpiece in privacy . . . [p]enned at the dawn of the computer age.” As importantly, The Assault on Privacy emerged within months of events that would finally alert Americans to an intelligence community that craved data at any price: the revelations of Army whistleblower Christopher Pyle, the investigations of the Senator Sam Ervin’s Committee on Constitutional Rights, and infiltration of the FBI field office at Median Pennsylvania. (See Timeline on this website.) If today Professor Miller’s book lacks the sizzle endemic to most predictions of technological dystopia, it is because The Assault on Privacy so perfectly describes the world we live in now: quite simply, Professor Miller’s forecasts came true. (Judge Kozinsky’s review appears at 90 Or. L. Rev. 1135.)]

ln spite of the successful adjustment man has made to the machine in many contexts, it would be foolish not to recognize that the transition to an electronic way of life is bound to be accompanied by abrasive dislocations, as almost all significant deviations from traditional life styles have been. Already there is a growing awareness of the effects that certain applications of the computer may have on that elusive value we call “personal privacy.” In the past the very ponderousness of movable-‐type technology inhibited man’s urge to collect and preserve information about his peers and thereby served to limit the amount of data that was recorded about an individual. But * * * the computer, with its insatiable appetite for information, its image of infallibility, and its inability to forget anything that has been stored in it, may become he heart of a surveillance system that will turn society into a transparent world in which our homes, our finances, and our associations will be bared to a wide range of casual observers, including the morbidly curious and the maliciously or commercially intrusive. * * *

When one attempts to analyze the proper status to be accorded the right of individual privacy in a democracy such as ours, one is immediately confronted with a mass of contradictions. We claim to be an "open" society with a tradition of free speech and free press that is deeply etched in our political

philosophy and expressed in the First Amendment of the Constitution. "The people's right to know" is the rallying cry whenever there is a suggestion of governmental information management. Yet, we also assert that the Constitution guarantees us a right of individuality, autonomy, and freedom from the intrusive activities of government and our fellow man. And in marked conflict with the notion that Americans have the right to be let alone, we have constructed sprawling, burgeoning urban areas that force people to live in small cubicles embedded in ugly vertical structures, travel in congested mass transit systems, and work in buildings designed primarily to produce assembly-‐line efficiency. Even worse, inner-‐city ghettos have forced large numbers of people to live in such close proximity that emotional and intellectual privacy has become an impossibility. The result has been to minimize man's physical privacy and his ability to enjoy any type of solitude.

Moreover, no people in the world are scrutinized, measured, counted, and interrogated by as many poll takers, social science researchers, and governmental officials as are Americans. Despite our tradition rugged individualism and our supposed right of privacy, the vast majority of us passively and voluntarily -‐-‐ often eagerly -‐-‐ respond fully to these intrusions. No doubt we do so in the desire to participate in the decision-‐making and opinion-‐formulating processes, a long-‐standing faith in the integrity of those questioning us, and a belief that the information we furnish will be used for limited purposes and will not receive undue publicity. To what extent do these assumptions remain valid in the cybernetic revolution? * * *

The concept of privacy is difficult to define because it is exasperatingly vague and evanescent, often meaning strikingly different things to different people. In part this is because privacy is a notion that is emotional in its appeal and embraces a multitude of different “rights,” some of which are intertwined, others often seemingly unrelated or inconsistent. Of late, however, lawyers and social scientists have been reaching the conclusion that the basic attribute of an effective right of privacy is the individual's ability to control the circulation of information relating to him -‐-‐ a power that often is essential to maintaining social relationships and personal freedom. Correlatively, when an individual is deprived of control over the spigot that governs the flow of information pertaining to him, in some measure he becomes subservient to those people and institutions that are able to manipulate it.

Computer systems that handle personal information may inflict harm on a data subject in two significant ways: by disseminating evidence of present or past actions or associations to a wider audience than the individual consented to or anticipated when he originally surrendered the information (deprivation of control over access), and by introducing factual or contextual inaccuracies in the data that create an erroneous impression of the subject's actual conduct or achievements in the minds of those to whom the information is exposed (deprivation of control over accuracy). * * *

The science-‐fiction mystique surrounding cybernetics has tended to create an illusion of computer impregnability, even among those who are familiar with the technology. * * * This enthusiast's appraisal simply fails to take into account the relatively advanced state of the eavesdropper's art, let alone the techniques of the computer snooper. In contrast, other experts have flatly asserted that most program languages are easy to decipher, that digital transmission of data "does not provide any more privacy than . . . Morse Code," and that "modest resources suffice to launch a low-‐level infiltration effort." * * * None of these activities requires the talent of an Einstein. Several people have told me that a moderately intelligent computer-‐science student, or even a programmer with a high school diploma, can break fairly elaborate codes in less than five hours; simian-‐like trial and error takes a bit longer. The professional snooper can combine a minicomputer with ten data-‐sets and have a code-‐cracking system for substantially less than $10,000. * * *

Given the incentive of a potentially high payoff for invading computerized files or intercepting data transmissions, there is no doubt that elements of organized crime, a variety of governmental agencies (especially the law enforcement establishment), and segments of private industry will shortly develop their ability to launch sophisticated snooping programs. Even clandestine firms offering a "file for a fee" are not beyond the realm of possibility. * * * In addition, the centralization of information from widely divergent sources and on markedly different subjects, as often results from establishing large data banks, creates serious problems of contextual accuracy. Large corporate or welfare data banks may collect information on a person's education, military record, medical history, employment background, aptitude and psychological-‐testing performance, as well as a number of subjective appraisals of his character and skills. Any of this information might be entirely accurate and sufficient when viewed from one perspective but be wholly incomplete and misleading when read in another. Contextual errors can occur in a number of ways. Raw, unevaluated data about an individual, especially when recorded in a cryptic fashion, might give rise to damaging inferences that a fuller explication of the underlying events, direct knowledge of the information source, or professional analysis of the facts would show to be false. * * * Consider the potential effect of the following computer profile: "Arrested, June 1, 1962; disorderly conduct and criminal conspiracy; convicted, April 12, 1963; sentenced, May 21, 1963, six months." Without more, how would a person viewing the entry know that what appears to be an anti-‐social type is merely a civil rights activist who spent some of his time during the early sixties working for the desegregation of educational facilities in the South or for equal employment opportunities for ghetto blacks in the North? * * * Indeed, the "conviction" may even have been reversed on appeal and our "offender" exonerated. * * * The problem of contextual accuracy is certain to become more severe in the future as increasing numbers of remote terminals are linked to computer systems and local and regional data centers are amalgamated into national or international networks. Under these conditions, it will become common for information to be moved and stored far from its point of original recordation, increasing the likelihood that it will be employed by people unassociated with and perhaps ignorant of the circumstances of its collection. The ease with which large quantities of information can be transferred, coupled with the technology's aura of omniscience, may result in some administrators in all quadrants of our society unduly relying on computerized data without investigating their source, the purpose for which they were originally collected, or the evaluation standards used by the data originator. Apprehension over the computer's threat to personal privacy seems particularly warranted when one begins to consider the possibility of using the new technology to further various private and governmental surveillance activities. * * * In one short time span, the existence of the Department of Housing and Urban Development's Adverse Information File, the National Science Foundation's data bank on scientists, the Customs Bureau's computerized data bank on "suspects," the Civil Service Commission's "investigative" and "security" files, the Secret Service's dossiers on "undesirables," the National Immigrant Workers' Children Data Bank, the National Driver Registration Service, and the surveillance activities of the United States Army came to light. Even now only the extremities of a vast, subterranean information structure may be visible. * * * But the "record prison" is not built simply by acquiring and preserving personal information. The computer can and is being used to analyze seemingly unrelated data on large numbers of people to

determine whether a particular individual's activities bear any relation to the conduct of other investigation subjects or groups. The capability of this so-‐called "inferential relational retrieval" is illustrated by the following remarks concerning American Airlines' deceptively innocuous flight reservation computer: American's computer can be queried about any traveler's movement in the past two or three months [including] flights traveled, seat number, time of day, telephone contact, hotel reservations, etc. . . . [A] computer expert for the airline says that l0-‐15 investigators a day (federal, state, local, and other) are permitted to delve into the computer for such information. Some of them want (and get) a print-‐out of the entire passenger list of a certain flight to see who might be traveling with a particular person.

Given the recent expansion of computerized reservation services to include hotels, car rental agencies, theaters, and sports arenas, relational analysis of an individual's activities is clearly the wave of the future in the surveillance field. And don't forget the trail being left by your Carte Blanche or American Express cards; it may be an interesting one, especially if you happen to shop or dine at the same places as some Mafia capo or suspected subversive.

Another possible surveillance application of the new technology is the computer's ability to manipulate a highly detailed database relating to a large number of variables in order to simulate the behavior of a complex organization. * * * To some degree, the wide-‐scale use of computers to determine consumer appetites and voter attitudes adds new dimensions to the study of human dynamics. Unfortunately, the name of the game is not necessarily to give the citizenry what it wants; often these surveys are intended to divine a method of making palatable what industry or government already has decided to offer the public. One New Jersey firm is developing a data bank on doctors in order to enable drug companies to promote their products in a way that is suited to the habits and personality of individual doctors. As this illustrates, the line between the use of cybernetics to understand an individual and its use to control or affect his conduct and beliefs is shadowy at best and one that is likely to be transgressed with some frequency.

Perhaps the most significant threats to personal freedom are presented by the inevitable linking of computers to existing surveillance devices for monitoring people and their communications. One of the simplest contemporary snooping devices is the pen register, which, when attached to a telephone line, records a series of dashes representing the numbers dialed from a particular telephone. This snooping capability could be magnified if the information drawn in by the pen register were automatically fed into a central computer for analysis. Widespread use of this technique would quickly reveal patterns of acquaintances and dealings among a substantial group of people. * * *

Yet even the computer-‐pen register combination really is quite primitive and its surveillance yield is relatively inconsequential when compared to the possible offspring of the marriage between computers and the emerging optical scanner technology. * * * A mail-‐cover operation obviously is highly inefficient and limited by the availability of human recorders. By using scanners, however, the data could be automatically drawn in, recorded, and forwarded to a computer for analysis by a sophisticated control program. Extensive utilization of this technique could yield exhaustive lists of the mail sent and received by thousands of individuals and organizations and an analysis of the suspected relationships among the correspondents. * * *

[I]f some of the foregoing has seemed slightly alarmist in tone, that may be necessary to counteract the all-‐too-‐complacent attitude of many citizens toward the management of our affairs by astigmatic administrators in both government and the private sector. As e.e. cummings once observed, “progress

is a comfortable disease.” The considerable benefits conferred on us by computer technology may opiate our awareness of the price that is being exacted in terms of personal freedom. It thus seems imperative to sound the klaxon as a warning that the computer may be precipitating a subtle realignment of power within our society as it begins to play a greater role in the decision-‐making processes of practically all of our significant governmental and nongovernmental institutions. As the importance of information increases, the central issue that emerges to challenge us is how to contain the excesses of this new form of power, while channeling its benefits to best serve the citizenry. If we really believe that personal privacy is fundamental to our democratic tradition of individual autonomy, and that its preservation is thought desirable, then my raising a voice against the trend toward a Dossier Society seems justified.

Sometimes such information is of value to others: that is, others will incur costs to discover it.

From: Richard A. Posner, The Right of Privacy, 12 Georgia Law Review 393 (Spring 1978) ______________________________________

[Note: Astonishingly productive, wide-‐ranging, and iconoclastic, the Seventh Circuit’s Judge Richard Posner is less known for his Katz-‐era privacy scholarship than for his later work. Nevertheless, then-‐Professor Posner’s March 1978 lecture (the basis of this article) is significant in introducing the elements that would distinguish Posner’s privacy-‐related writing over the next thirty years, whether in The Economics of Justice (1983) or Not a Suicide Pact: The Constitution in a Time of National Emergency (2006). First, Posner examined privacy, like other legal questions, entirely through the lens of microeconomics, supporting the expansion of privacy rights for businesses rather than for individuals. Second, Posner’s perspective on the value of privacy ran counter to that of most other theorists: “Very few people want to be let alone,” Posner asserted in challenge to Brandeis’s famous aphorism. “They want to manipulate the world around them by selective disclosure of facts about themselves.” Nor have Judge Posner’s conclusions softened post-‐Edward Snowden: “A good deal of privacy . . . reduces the well-‐being of society as a whole.” Judge Posner wrote in the New York Daily News in 2013.]

[O]ne aspect of privacy is the withholding or concealment of information. This aspect is of particular interest to the economist now that the study of information has become an important field of economics. * * *

People invariably possess information, including facts about themselves and contents of communications, that they will incur costs to conceal. Sometimes such information is of value to others: that is, others will incur costs to discover it. Thus we have two economic goods, "privacy" and "prying." We * * * regard privacy and prying as intermediate rather than final goods, instrumental rather than ultimate values. Under this approach, people are assumed not to desire or value privacy or prying in themselves but to use these goods as inputs into the production of income or some other broad measure of utility or welfare. * * *

The demand for private information * * * is readily comprehensible where the existence of an actual or potential relationship, business or personal, creates opportunities for gain by the demander. This is obviously true of the information which the tax collector, fiancé, partner, creditor, and competitor, among others, seek. Less obviously, much of the casual prying (a term used here without any pejorative connotation) into the private lives of friends and colleagues that is so common a feature of social life is also motivated, to a greater extent than we may realize, by rational considerations of self-‐interest. Prying enables one to form a more accurate picture of a friend or colleague, and the knowledge gained is useful in one's social or professional dealings with him. * * * The other side of the coin is that social, like business, dealings present opportunities for exploitation through misrepresentation. Psychologists and sociologists have pointed out that even in everyday life people try to manipulate by misrepresentation other people's opinion of them. * * * A seldom-‐ remarked corollary to a right to misrepresent one's character is that others have a legitimate interest in unmasking the deception. Yet some of the demand for private information about other people is not self-‐protection in the foregoing sense but seems mysteriously disinterested—for example, that of the readers of newspaper gossip columns, whose "idle curiosity" Warren and Brandeis deplored, groundlessly in my opinion. Gossip columns recount the personal lives of wealthy and successful people whose tastes and habits offer models—that is, yield information—to the ordinary person in making consumption, career, and other decisions. * * * Gossip columns open people's eyes to opportunities and dangers; they are genuinely informational. * * * Warren and Brandeis attributed the rise of curiosity about people's lives to the excesses of the press. * * * A more persuasive explanation for the rise of the gossip column is the secular increase in personal incomes. * * * Personal surveillance is costlier in wealthier societies both because people live in conditions that give them greater privacy from such observation and because the value (and hence opportunity cost) of time is greater. * * * People in the wealthier societies sought an alternative method of informing themselves about how others live and the press provided it. * * * That disclosure of personal information is resisted by, i.e., is costly to, the person to whom the information pertains yet is valuable to others may seem to argue for giving people property rights in information about themselves and letting them sell those rights freely. The process of voluntary exchange would then assure that the information was put to its most valuable use. * * * The interest in encouraging investment in the production of socially valuable information presents the strongest case for granting property rights in secrets. This is the economic rationale for according legal protection to the variety of commercial ideas, plans, and information encompassed by the term "trade secret." It also explains why the law does not require the "shrewd bargainer" to disclose to the other party to the bargain the bargainer's true opinion of its value. What we mean by shrewd bargainer is (in part) someone who invests resources in acquiring information about the true values of things. Were he forced to share this information with potential sellers he would obtain no return on his investment. * * * At some point nondisclosure becomes fraud. One consideration relevant to deciding whether a transacting party has crossed the line is whether the information that he seeks to conceal is a product of significant investment. If not, the social costs of disclosure, which * * * arise from the effect of disclosure in dampening the incentive to invest in information gathering, will be low. * * *

Transaction-‐cost considerations may also militate against the assignment of a property right to the possessor of a secret. Consider * * * whether the law should allow a magazine to sell its subscriber list to another magazine without obtaining the subscribers' consent. * * * [T]he costs of obtaining subscriber approval would be high relative to the value of the list. If, therefore, we believe that these lists are generally worth more to the purchasers than being shielded from possible unwanted solicitations is worth to the subscribers, we should assign the property right to the magazine. * * * The decision to assign the property right away from the individual is supported * * * by the fact that the costs of disclosure to the individual are small. * * * They are small in the subscription-‐list case because the information about the subscribers that is disclosed to the purchaser of the list is trivial; the purchaser cannot use it to impose substantial costs on the subscribers." The type of private information discussed thus far is not, in general, discreditable to the individual to whom it pertains. Yet we have seen that there may still be good reasons to assign the property right away from him. Much of the demand for privacy, however, concerns discreditable information, often information concerning past or present criminal activity or moral conduct at variance with a person's professed moral standards. And often the motive for concealment is * * * to mislead those with whom he transacts. Other private information that people wish to conceal, while not strictly discreditable, would if revealed correct misapprehensions that the individual is trying to exploit, as when a worker conceals a serious health problem from his employer or a prospective husband conceals his sterility from his fiancée. It is not clear why society should assign the property right in such information to the individual to whom it pertains. * * * A separate question * * * is whether the decision to assign the property right away from the possessor of guilty secrets implies that the law should countenance any and all methods of uncovering those secrets. An analogy to the world of commerce may help to explain why people should not—on economic grounds, in any event—have a right to conceal material facts about themselves. We think it wrong (and inefficient) that the law should permit a seller in hawking his wares to make false or incomplete representations as to their quality. But people "sell" themselves as well as their goods. They profess high standards of behavior in order to induce others to engage in social or business dealings with them from which they derive an advantage but at the same time they conceal some of the facts that these acquaintances would find useful in forming an accurate picture of their character. There are practical reasons for not imposing a general legal duty of full and frank disclosure of one's material personal shortcomings. * * * But everyone should be allowed to protect himself from disadvantageous transactions by ferreting out concealed facts about individuals which are material to the representations (implicit or explicit) that those individuals make concerning their moral qualities. It is no answer that such individuals have "the right to be let alone." Very few people want to be let alone. They want to manipulate the world around them by selective disclosure of facts about themselves. Why should others be asked to take their self-‐serving claims at face value and be prevented from obtaining the information necessary to verify or disprove these claims? Some private information that people desire to conceal is not discreditable. * * * [But not] many people have a general reticence that makes them wish to conceal nondiscrediting personal information. Anyone who has ever sat next to a stranger on an airplane or a ski lift knows the delight that people take in

talking about themselves to complete strangers. Reticence comes into play when one is speaking to people—friends, relatives, acquaintances, business associates—who might use information about him to gain an advantage in some business or social transaction with him. Reticence is generally a means rather than an end. The reluctance of many people to reveal their income is sometimes offered as an example of a desire for privacy that cannot be explained in purely instrumental terms. But I suggest that people conceal an unexpectedly low income because being thought to have a high income has value in credit markets and elsewhere, and that they conceal an unexpectedly high income in order (1) to avoid the attention of tax collectors, kidnappers, and thieves, (2) to fend off solicitations from charities and family members, and (3) to preserve a reputation for generosity that might be demolished if others knew the precise fraction of their income that they give away. * * * To the extent that people conceal personal information in order to mislead, the economic case for according legal protection to such information is no better than that for permitting fraud in the sale of goods. However, it is also necessary to consider the means by which others obtain personal information. Prying by means of casual interrogation of acquaintances of the object of the prying must be distinguished from eavesdropping, electronically or otherwise, on a person's conversations. * * * [T]he costs of defamatory utterances are greater the more publicity that is given the utterance. If every conversation were public, the time and other resources devoted to assuring that one's speech was free from false or unintended slanders would rise. Society can avoid the additional costs by the simple and relatively inexpensive expedient of providing legal sanctions against infringement of conversational privacy. * * * The rise of privacy has facilitated private conversation and thereby enabled us to economize on communication—to speak with a brevity and informality. * * * Allowing eavesdropping would undermine this valuable economy of communication. In some cases, to be sure, communication is not related to socially productive activity. Communication among criminal conspirators is an example. In these cases, where limited eavesdropping is indeed permitted, its effect in reducing communication is not an objection to but an advantage of it. * * * Photographic surveillance—for example, of the interior of a person's home—presents a slightly more complex question. Privacy enables a person to dress and otherwise disport himself in his home without regard to the effect on third parties. This informality, which is resource-‐conserving, would be lost were the interior of the home in the public domain. People dress not merely because of the effect on others but also because of the reticence concerning nudity and other sensitive states; that reticence is another reason for giving people a privacy right with regard to places in which these sensitive states occur. * * * [T]here is a prima facie case for assigning the property right in a secret that is a byproduct of socially productive activity to the individual if its compelled disclosure would impair the incentives to engage in that activity; but there is a prima facie case for assigning the property right away from the individual where secrecy would reduce the social product by misleading the people with whom he deals. However, merely because most facts about people belong in the public domain does not imply that the law should generally permit intrusion on private communications, given the effects of such intrusions on the costs of legitimate communications. * * *

Partly because eavesdropping and related modes of intrusive surveillance are such powerful methods of eliciting private information and partly because they are relatively easy to protect against, we can expect that people would undertake evasive maneuvers, costly in the aggregate, if surveillance compromised conversational privacy. It is more difficult to imagine that people would take effective measures against casual prying. * * * [T]he law should in general accord private business information greater protection than it accords personal information. Secrecy is an important method of appropriating social benefits to the entrepreneur who creates them while in private life it is more likely to conceal discreditable facts. Communications within organizations, whether public or private, should receive the same protection as communications among individuals, for in either case the effect of publicity would be to encumber and retard communication. Yet, contrary to this analysis, the legislative trend is toward giving individuals more and more privacy protection respecting both facts and communications and giving business firms and other organizations, including government agencies, universities and hospitals, less. * * * Increasingly, moreover, the facts pertaining to individuals—arrest record, health, credit-‐worthiness, marital status, sexual proclivities—are secured from involuntary disclosure, while the facts concerning business corporations are thrust into public view by the expansive disclosure requirements of the federal securities laws, the civil rights laws, line of business reporting, and other regulations. A related trend is the erosion of the privacy of government officials through increasingly stringent ethical standards requiring disclosure of income. * * * It may be doubted whether the kind of analysis that seeks to establish rights not derived from a calculation of costs and benefits is even applicable to the privacy area. * * * [W]e have no right, by controlling the information that is known about us to manipulate the opinions that other people hold of us. Yet this control is the essence of what most students of the subject mean by privacy. * * * [I]f I have not done full justice to the previous literature on privacy, I may at least have indicated sufficient difficulties with the noneconomic approaches to suggest the value of an economic analysis. To recapitulate, that analysis simply asks (1) why people, in the rational pursuit of their self-‐interest, attempt on the one hand to conceal certain facts about themselves and on the other hand to discover certain facts about other people, and (2) in what circumstances such activities will increase rather than diminish the wealth of the society.

This creation of mental distance -‐-‐ a variant of the concept of "social distance"-‐-‐ takes place in every sort of relationship under rules of social etiquette; it expresses the individual's choice to withhold or disclose information -‐-‐ the choice that is the dynamic aspect of privacy in daily interpersonal relations. From: Alan F. Westin. Privacy and Freedom (1967) ___________________________________________ [Note: Columbia University scholar and researcher Alan Westin is widely recognized as the single most influential privacy scholar of the 20th century, remembered in by the New York Times in his 2013 obituary as having “created, almost single-‐handedly, the modern field of privacy law.” Four decades after its release, Privacy and Freedom continues to be the “canonical text” of privacy theory, extensively cited, excerpted, and taught, as well credited for inspiring the work of contemporary legal theorists like Jeffrey Rosen and Daniel Solove. Notably, Westin’s great book described privacy in terms that continue to characterize most 21st century expectations – coining a definition appropriate to the coming age of digital technology (i.e., privacy as the ability to “control, edit, manage, and delete information about [oneself] and to decide when, how, and to what extent information is communicated to others”) and identifying the unmonitored life as a prerequisite of democratic citizenship. Appropriately, Westin spent the last decades of his life in formulating privacy policy for governments (e.g., the EU’s 1998 Directive on Data Protection) and businesses.] To its profound distress, the American public has recently learned of a revolution in the techniques by which public and private authorities can conduct scientific surveillance over the individual. * * * As examples mount of the uses made of the new technology, worried protests against "Big Brother" have set alarms ringing along the civic-‐group spectrum from extreme left to radical right. Reflecting this concern, "invasion of privacy" has become a leading topic in law-‐review articles and social-‐science journals , as well as the subject of legislative and executive investigations at the state and federal levels and of a growing number of exploratory judicial rulings throughout the country. As the late 1960's arrived, it was clear that American society had developed a deep concern over the preservation of privacy under the new pressures from surveillance technology. * * * [T]he thoughtful reader has little need for further ringing denunciations of "Big Brother in America" or popular volumes devoted to documenting the spread of privacy-‐invading practices in our society. * * * The real need is to move from public awareness of the problem to a sensitive discussion of what can be

done to protect privacy in an age when so many forces of science, technology, environment, and society press against it from all sides. Such an analysis seems to call for at least four inquiries. First, privacy must be defined rather than simply invoked, and its psychological, sociological, and political dimensions must be described on the basis of leading theoretical and empirical studies. Second, the new techniques of surveillance, their present uses, and their future prospects must be described, forsaking Orwellian imagery for hard facts. Third, the ways in which American society has reacted to the new surveillance techniques must be examined in depth to see what has been happening to our norms of privacy during the past two decades and whether there are trends in interest-‐group and general public opinion that may help to guide American policy-‐makers. Finally, there should be a discussion of how American law has dealt with the issue of privacy and surveillance, as the backdrop for an analysis of specific measures that public and private authorities might take to ensure the continuation of privacy in the 1970's as a cornerstone of the American system of liberty. * * * [I]t is hard to see how we can come to grips with the dilemmas of privacy and freedom unless these are the problems we study. Few values so fundamental to society as privacy have been left so undefined in social theory or have been the subject of such vague and confused writing by social scientists. This is emphasized by the fact that most commentators assume that privacy is a distinctly modem notion. * * * In my view, the modem claim to privacy derives first from man's animal origins and is shared, in quite real terms, by men and women living in primitive societies. Furthermore, the approach to privacy taken by Americans today developed from a tradition of limiting the surveillance powers of authorities over the private activities of individuals and groups that goes back to the Greeks in Western political history. * * * Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others. Viewed in terms of the relation of the individual to social participation, privacy is the voluntary and temporary withdrawal of a person from the general society through physical or psychological means, either in a state of solitude or small group intimacy or, when among larger groups, in a condition of anonymity or reserve. * * * Reserve * * *is the creation of a psychological barrier against unwanted intrusion; this occurs when the individual's need to limit communication about himself is protected by the willing discretion of those surrounding him. Most of our lives are spent not in solitude or anonymity but in situations of intimacy and in group settings where we are known to others. Even in the most intimate relations, communication of self to others is always incomplete and is based on the need to hold back some parts of one's self as either too personal and sacred or too shameful and profane to express. This circumstance gives rise to [what has been called] reciprocal reserve and indifference," the relation that creates "mental distance" to protect the personality. This creation of mental distance -‐-‐ a variant of the concept of "social distance"-‐-‐ takes place in every sort of relationship under rules of social etiquette; it expresses the individual's choice to withhold or disclose information -‐-‐ the choice that is the dynamic aspect of privacy in daily interpersonal relations. [T]his tension within the individual [has been identified] as being between "self-‐revelation and self-‐restraint" and, within society, between "trespass and discretion." The manner in which individuals claim reserve and the extent to which it is respected or disregarded by others is at the heart of securing meaningful privacy in the crowded, organization-‐dominated settings of modern industrial society and urban life. * * *

[The] functions privacy performs for individuals in democratic societies [can] be grouped conveniently under four headings: personal autonomy, emotional release, self-‐evaluation, and limited and protected communication. [T]hese four functions constantly flow into one another, but their separation for analytical purposes helps to clarify the important choices about individual privacy that American law may have to make in the coming decade. Personal Autonomy. In democratic societies there is a fundamental belief in the uniqueness of the individual, in his basic dignity and worth as a creature of God and a human being, and in the need to maintain social processes that safeguard his sacred individuality. Psychologists and sociologists have linked the development and maintenance of this sense of individuality to the human need for autonomy -‐-‐ the desire to avoid being manipulated or dominated wholly by others. One of the accepted ways of representing the individual's need for an ultimate core of autonomy, as expressed by [leading privacy theorists], has been to describe the individual's relations with others in terms of a series of “zones" or "regions" of privacy leading to a "core self." This core self is pictured as an inner circle surrounded by a series of larger concentric circles. The inner circle shelters the individual's "ultimate secrets" -‐-‐ those hopes, fears, and prayers that are beyond sharing with anyone unless the individual comes under such stress that he must pour out these ultimate secrets to secure emotional relief. Under normal circumstances no one is admitted to this sanctuary of the personality. The next circle outward contains "intimate secrets," those that can be willingly shared with close relations, confessors, or strangers who pass by and cannot injure. The next circle is open to members of the individual's friendship group. The series continues until it reaches the outer circles of casual conversation and physical expression that are open to all observers. The most serious threat to the individual's autonomy is the possibility that someone may penetrate the inner zone and learn his ultimate secrets, either by physical or psychological means. This deliberate penetration of the individual's protective shell, his psychological armor, would leave him naked to ridicule and shame and would put him under the control of those who know his secrets. Autonomy is also threatened by those who penetrate the core self because they do not recognize the importance of ultimate privacy or think that the casual and uninvited help they may be rendering compensates for the violation. Each person is aware of the gap between what he wants to be and what he actually is, between what the world sees of him and what he knows to be his much more complex reality. In addition, there are aspects of himself that the individual does not fully understand but is slowly exploring and shaping as he develops. Every individual lives behind a mask in this manner; indeed, the first etymological meaning of the word "person" was "mask," indicating both the conscious and expressive presentation of the self to a social audience. If this mask is torn off and the individual's real self bared to a world in which everyone else still wears his mask and believes in masked performances, the individual can be seared by the hot light of selective, forced exposure. The numerous instances of suicides and nervous breakdowns resulting from such exposures * * * constantly remind a free society that only grave social need can ever justify destruction of the privacy which guards the individual's ultimate autonomy. The autonomy that privacy protects is also vital to the development of individuality and consciousness of individual choice in life. * * *Who can know what [the individual] thinks and feels if he never has the opportunity to be alone with his thoughts and feelings?" This development of individuality is particularly important in democratic societies, since qualities of independent thought, diversity of views, and non-‐conformity are considered desirable traits for individuals. Such independence requires time for

sheltered experimentation and testing of ideas, for preparation and practice in thought and conduct, without fear of ridicule or penalty, and for the opportunity to alter opinions before making them public. The individual's sense that it is he who decides when to "go public" is a crucial aspect of his feeling of autonomy. Without such time for incubation and growth, through privacy, many ideas and positions would be launched into the world with dangerous prematurity. * * * [To sum up] the importance of privacy for political liberty: * * * Privacy is a special kind of independence, which can be under stood as an attempt to secure autonomy in at least a few personal and spiritual concerns, if necessary in defiance of all the pressures of modern society. * * * The free man is the private man, the man who still keeps some of his thoughts and judgments entirely to himself, who feels no over-‐riding compulsion to share everything of value with others, not even those he loves and trusts. Emotional Release. Life in society generates such tensions for the individual that both physical and psychological health demand periods of privacy for various types of emotional release. At one level, such relaxation is required from the pressure of playing social roles. * * * There have to be moments "off stage" when the individual can be "himself": tender, angry, irritable, lustful, or dream-‐filled. Such moments may come in solitude; in the intimacy of family, peers, or woman-‐to-‐woman and man-‐to-‐man relaxation; in the anonymity of park or street; or in a state of reserve while in a group. Privacy in this aspect gives individuals * * * a chance to lay their masks aside for rest. To be always "on" would destroy the human organism. Closely related to this form of release is the need of individuals for respite from the emotional stimulation of daily life. * * * But the whirlpool of active life must lead to some quiet waters, if only so that the appetite can be whetted for renewed social engagement. Privacy provides the change of pace that makes life worth savoring. Another form of emotional release is provided by the protection privacy gives to minor non-‐compliance with social norms. Some norms are formally adopted -‐-‐ perhaps as law -‐-‐ which society really expects many persons to break. * * * The firm expectation of having privacy for permissible deviations is a distinguishing characteristic of life in a free society. At a lesser but still important level, privacy also allows individuals to deviate temporarily from social etiquette when alone or among intimates, as by putting feet on desks, cursing, letting one's face go slack, or scratching wherever one itches. Another aspect of release is the "safety-‐valve" function afforded by privacy. Most persons need to give vent to their anger at "the system," "city hall," "the boss," and various others who exercise authority over them, and to do this in the intimacy of family or friendship circles, or in private papers, without fear of being held responsible for such comments. This is very different from freedom of speech or press, which involves publicly voiced criticism without fear of interference by government and subject only to private suit. Rather, the aspect of release concerned here involves commentary that may be wholly unfair, frivolous, nasty, and libelous, but is never socially measured because it is uttered in privacy. * * * [P]rivacy in such moments is respected because society knows that these occasional outbursts make possible the measured and responsible speech that is produced for public presentation. Still another aspect of release through privacy arises in the management of bodily and sexual functions. American society has strong codes requiring privacy for evacuation, dressing the body, and arranging the body while in public. * * *

Finally, emotional release through privacy plays an important part in individual life at times of loss, shock, or sorrow [and] by individuals * * *who have suffered defeats or loss of face and need to retire from public view to regroup their psychological forces. * * * [I]t is striking how often the rules of "decency" do provide substantial privacy in these circumstances. * * * Self-‐Evaluation. Every individual needs to integrate his experiences into a meaningful pattern and to exert his individuality on events. To carry on such self-‐evaluation, privacy is essential. At the intellectual level, individuals need to process the information that is constantly bombarding them. * * * [P]rivacy in such circumstances enables a person to "assess the flood of information received, to consider alternatives and possible consequences so that he may then act as consistently and appropriately as possible. Privacy serves not only a processing but a planning need, by providing a time "to anticipate, to recast, and to originate." This is particularly true of creative persons. Studies of creativity show that it is in reflective solitude and even "daydreaming" during moments of reserve that most creative "non-‐verbal" thought takes place. At such moments the individual runs ideas and impressions through his mind in a flow of associations; the active presence of others tends to inhibit this process. * * * The evaluative function of privacy also has a major moral dimension -‐-‐ the exercise of conscience by which the individual "repossesses himself." While people often consider the moral consequences of their acts during the course of daily affairs, it is primarily in periods of privacy that they take a moral inventory of ongoing conduct and measure current performance against personal ideals. For many persons this process is a religious exercise. * * * [Philosopher-‐psychologist] William James called religion the experience of "individual men in their solitude. * * * Even for an individual who is not a religious believer, privacy serves to bring the conscience into play, for, when alone, he must find a way to continue living with himself. * * * Limited and Protected Communication. The greatest threat to civilized social life would be a situation in which each individual was utterly candid in his communications with others, saying exactly what he knew or felt at all times. * * * [A]mong mature persons all communication is partial and limited, based on the complementary relation between reserve and discretion. * * * Limited communication is particularly vital in urban life, with its heightened stimulation, crowded environment, and continuous physical and psychological confrontations between individuals who do not know one another. * * * Reserved communication is the means of psychic self-‐preservation for men in the metropolis. Privacy for limited and protected communication has two general aspects. First, it provides the individual with the opportunities he needs for sharing confidences and intimacies with those he trusts -‐-‐spouse, "the family," personal friends, and close associates at work. * * * In addition, the individual often wants to secure counsel from persons with whom he does not have to live daily after disclosing his confidences. He seeks professionally objective advice from persons whose status in society promises that they will not later use his distress to take advantage of him. To protect freedom of limited communication, such relationships-‐with doctors, lawyers, ministers, psychiatrists, psychologists, and others-‐are given varying but important degrees of legal privilege against forced disclosure. * * * For this reason, certain places where the real world is seemingly held in suspension "outside" -‐-‐ such as trains, boats, and bars -‐-‐ lend themselves to free conversation.

In its second general aspect, privacy through limited communication serves to set necessary boundaries of mental distance in interpersonal situations ranging from the most intimate to the most formal and public. In marriage, for example, husbands and wives need to retain islands of privacy in the midst of their intimacy if they are to preserve a saving respect and mystery in the relation. * * Successful marriages usually depend on the discovery of the ideal line between privacy and revelation and on the respect of both partners for that line. In work situations, mental distance is necessary so that the relations of superior and subordinate do not slip into an intimacy which would create a lack of respect and an impediment to directions and correction. Psychological distance is also used in crowded settings to provide privacy for the participants of group and public encounters; a complex but well-‐understood etiquette of privacy is part of our social scenario. Bates remarked that "we request or recognize withdrawal into privacy in facial expressions, bodily gestures, conventions like changing the subject, and by exchanging meaning in ways which exclude others present. * * * We learn to ignore people and to be ignored by them as a way of achieving privacy. * * * So far, the discussion has stressed the individual's need for privacy and the functions privacy performs in his personal life. But privacy is neither a self-‐sufficient state nor an end in itself, even for the hermit and the recluse. It is basically an instrument for achieving individual goals of self-‐realization. As such, it is one part of the individual's complex [means of adjusting] his emotional mechanism to the barrage of personal and social stimuli that he encounters in daily life. * * * This balance of privacy and disclosure will be powerfully influenced, of course, by both the society's cultural norms and the particular individual’s life situation.

Our anxieties have increased with each report that such sleuthing not only can be done, but that it is being done on a massive scale.

From: Shirley M.Hufstedler, The Directions and Misdirections of a Constitutional Right of Privacy (1971) __________________________________________

[Note: Outspoken in her desire to be the first woman appointed to the Supreme Court, the Ninth Circuit’s Shirley Hufstedler used her May 1971 lecture to the New York City Bar Association to articulate a more progressive view of privacy than the Court had yet adopted. Specifically, Hufstedler targeted those textualists whose focus on the Framers’ intend and word choices reflected a “thralldom to real estate” rather than “personal values,” effectively “shrivel[ling] to evanescence their vision of documentary immortality.”As significantly, Hufstedler advanced a constitutional theory that located privacy, not in implications or penumbra, but in the foundational material from which all rights sprang: “a unified concept pulsing through the entire Bill of Rights and drawing various amounts of energy from several Amendments.” Forty years after its delivery, Hufstedler’s speech continues to offer a genuinely fresh perspective on American law.]

"The right to be let alone" is a singularly appealing phrase. To borrow a political cliche, it has charisma. Judge Cooley's pungent apothegm captivates us because, as a slogan, it evokes and encapsulates our yearning for personal freedom, our longing to be released from the restraints and frustrations of life in a crowded, complex society, our nostalgia for Eden lost, and our hope for Eden regained -‐-‐ with nothing down and no future installments.

The conversion of "the right to be let alone" from a slogan into a legal concept is often attributed to the famous 1890 article by Warren and Brandeis, who translated the phrase into "the right to privacy." The conversion, in fact, had been forcefully initiated over a century earlier by the draftsmen of the Federal Constitution and by the writers of a trove of common law principles and statutes designed to protect people from unwarranted infringements of human dignity.

III. The Reasonable Expectation of Privacy: Defined by Social Practice

Our debt to Warren and Brandeis is nevertheless great. Their article disinterred human values that had been long buried under a moraine of property interests and of atrophying public and private remedies. From those 19th century seeds has sprouted a varied crop of literature and litigation. It has yielded a bountiful harvest of statutory and common law, of constitutional precepts and of utter confusion. No corner of the privacy field is more unkempt than that tended by the United States Supreme Court. None is in greater need of careful husbandry. * * * What manner of right has the Court wrought? Who is protected from what, and why? The search for answers to these questions is pressing. The ram pant growth of technology has instilled national fear that 1984 is here. The fear is not irrational. Orwellian devices can now monitor and record our every syllable, movement, and bodily function, with or without our knowledge. Battalions of public and private guardians, snoopers, and probers can capture and retain our very essence for instant transmission, or for delayed release at a more convenient time. Our anxieties have increased with each report that such sleuthing not only can be done, but that it is being done on a massive scale. Particularly disturbing are the revelations that public officialdom has undertaken surveillance of countless private citizens, upon whom it has accumulated extensive dossiers, with no excuse other than some official's personal distaste for the political philosophies or the life styles of his fellow Americans. Despite the oft-‐repeated characterization of the right of privacy as "the right most valued by civilized men,” despite pronouncements that the right is a constitutional imperative, and despite increasing pressure to expand the compass of the right to the dimensions of the threat posed by new technology, the content of the right remains elusive, the constitutional sources from which it springs are vaguely charted, and the remedies for its vindication remain largely ephemeral. One reason for the fitful and often arrested development of the right of privacy is the lack of clear definition or coherent description of the interests which the right protects. A legal scholar in hot pursuit of the definition of the protected interests can choose a variety of paths to reach his quarry. One respectable method is to collect the cases in which the right has been invoked, to sort them according to their reasoning, their result, or both, and to fit the cases each into the other to discover some patterns from which guiding principles can be discerned. Dean Prosser used that method when he revisited the Warren-‐Brandeis monument 70 years after its construction. * * * One's admiration for Dean Prosser's skill and for the orderliness of his analysis is tempered by a haunting suspicion that Warren and Brandeis' soaring concept of the human values implicit in the right of privacy was not sized for those analytical calipers. One can apply Dean Prosser's technique to explore privacy as a constitutional precept. * * * One can hypothesize the interests thus protected: an interest in property, an interest in forming and maintaining personal relationships, and an interest in being free from intentionally inflicted emotional distress. Those interests are not identical, and they are sometimes unrelated to each other. The connection be-‐ tween the cases in different categories is the common element of intrusive governmental conduct. Therefore, one can theorize, the constitutionally secured right of privacy is simply the right to be free from certain kinds of intrusive governmental acts. The analysis is excellent but for one flaw -‐-‐ it will not work. * * *

No exercise in classification can obscure the basic defect in the whole design. The defect is that the right is defined solely by the wrong. Therefore, there is no need to define the right independently. The reach of the right of privacy is no longer than the current catalog of specific governmental wrongs. * * * Perhaps what is needed is not classification, but insight into human reality. Insight here is not newly discovered truth, but old truth reinforced by the observations of historians, anthropologists, naturalists, biologists, psychologists, and social scientists. * * * From Professor Westin's book, Privacy and Freedom, * * * we learn that people require physical and psychological distances from their fellows to permit them to function adequately as human beings. We learn that each person must be able to restrict information about himself if he is to preserve the core of his personality. What kinds of information an individual needs to keep secret and from whom vary from person to person and from culture to culture. But every society develops rules or norms by which its members are protected from undue penetration of their shields of secrecy. The identification of the universal need for preserving secrecy about one's inner self led Professor Westin to define "privacy" as "the claim of individuals, groups, or institution to determine for themselves when, how, and to what extent information about them is communicated to others." No one has written a better definition of the term. The personal interest to be protected by a right of privacy is the individual's interest in preserving his essential dignity as a human being. It is his interest in securing the autonomy of his personality. It is an interest that society shares, because a society cannot long endure that is unable to preserve to its members the autonomy of their personalities. If the right is broad enough to encompass that interest, it is grand enough to deserve the tribute that it is the most comprehensive of rights and the most valued. The right of privacy can be neither comprehensive nor valuable unless it can be enforced against agencies of government. Enforcement requires institutionalized means to vindicate the right. We have committed its vindication to the United States Supreme Court more than to any other institution. In part, we have done so because it is the final interpreter of the Federal Constitution. In part, we have done so because the decisions of the Court are pronouncements that illuminate the values that government will serve and preserve. In identifying those personal rights that will be constitutionally protected, the Court has traditionally looked to three sources: the text of the Federal Constitution, the historical background of its draftsmanship, and the Court's prior readings of the scriptural passages that appear to be the most promising. Let us start with the "autonomy of personality" concept and follow the traditional path. Our first stop will be the opening clause of the Fourth Amendment. * * * The guaranty that people shall be "secure in their persons" is broad enough to encompass the right of persons to decide for themselves "when, how, and to what extent information about them is communicated to others." The Government is prohibited from violating that security by unreasonable searches and seizures. Nothing on the face of the Amendment expressly restricts the prohibitions to physical searches or to the seizure of tangibles or confines the operation of the prohibition to the arena of criminal law. * * * We can then conclude that the plain language of the Amendment evidences the draftsmen's intent to impose those restrictions [i.e., the search of tangible items as suggested by the warrants clause] upon the scope of the right of personal security. Moreover, the conclusion can be buttressed by noting that

the drafts men could not have had anything else in mind, because the only kinds of searches and seizures that they knew about involved physical intrusions and the seizure of persons and tangible things. That interpretive technique is familiar, but it may reveal more about the intent of the interpreter than it does about the intent of the draftsmen. To be sure, the writers of the Fourth Amendment had heard little of Mesmer and nothing of Freud. They did not have the prescience to anticipate cybernetics, pentathol, data banks, or any of the other miracles of potential mischief in which we abound. But did the draftsmen intend to protect the security of persons only against the means of intrusion then available, or did they intend to protect that security from arbitrary governmental invasions by all means that are similarly offensive? * * * Were they writing an organic and enduring charter of government or only an improved criminal code? The draftsmen knew too well the evils of unbridled surveillance, of secret dossiers, and of duress -‐-‐ the despised tactics of many states and satrapies. They knew the Fourth and Fifth Amendments not only to shield Americans from those particular governmental excesses, but also to secure to them those fundamental rights without which life, in society as they desired it, would not have been tolerable. * * * To assume that they were predominantly concerned with the particular mechanics of penetrating personality rather than with the personality itself is to shrivel to evanescence their vision of documentary immortality. * * * [The constitutional scope intended by the framers emerged again in] Brandeis' resonant prose in Olmstead: "The makers of our Constitution,'' he said, ". . . recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their . . . sensations. They conferred, as against the Government, the right to be let alone -‐-‐ the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” * * * Mr. Justice Stewart's observation in Katz that "the Fourth Amendment protects people, not places" signaled a release from the thralldom of trespass to real estate and a renewed focus on the personal values that Brandeis had emphasized. * * * One of the principal reasons for the Court's failure to build the Fourth Amendment to Brandeis' specifications has been the Court's recurring inclination to confine the Amendment to the context of criminal law. * * * The message most widely received is that the Fourth Amendment is a shield solely for the guilty * * * People subjected to illegal searches that tum up nothing incriminating do not appear in the criminal process. * * * The extent to which the right of privacy secured by the Fourth Amendment has been crushed under the weight of criminal law and procedure becomes increasingly evident when the Fourth Amendment privacy cases are contrasted with those presented in other constitutional contexts. * * * In the warm climate of the First and Fourteenth Amendments, the Court has repeatedly protected the autonomy of personality from unreasonable state penetrations. The Court there recognizes that a person must have a right to draw a cloak of secrecy around his personal associations and his more intimate relationships if he is to retain his autonomy. It has prevented the state from rending that cloak unless there is

compelling justification for doing so and unless the means chosen by the state are not unduly clumsy and those means are reasonably related to the legitimate interests of government. * * * The change in the reception accorded to the right of privacy when the 'Fourth Amendmen t overlay is removed is strikingly illustrated by Griswold v. Connecticut, the most celebrated constitutional right of privacy case. Griswold is not strictly speaking, a privacy case, for it did not involve any direct state inquiry into the private life of Griswold's patients or any attempt to compel them to disclose their matrimonial secrets, or any actual intrusion into their homes. * * * The explanation for the Court's resort to a concept of privacy, rather than its use of a due process rationale, may lie in the partially articulated subtheme of the Griswold opinions: The norms of our society dictate that sexual expression must be heavily veiled with secrecy and any governmental action that actually or potentially lifts that veil impairs integrity of personality. The fear of governmental voyeurism is thought to be almost as destructive of personality as would be a physical intrusion. * * * Implicitly, and to some extent explicitly, the Griswold opinions recognize that the right of privacy does not consist of slightly related concepts gathered into clusters, each cluster orbiting its own Amendment; rather, it is unified concept pulsing through the entire Bill of Rights and drawing various amounts of energy from several Amendments. * * * Brandeis is the architect of a house of many mansions in which few now reside. But the promise survives and the plans remain for the construction of a constitutional right of privacy. The building of the right is overdue. The task must be commenced, but it can never be finished, because the quest for liberty is unending.

“[H]owever one conceives one’s relations with other people, there is inseparable from that conception an idea of how it is appropriate to behave with and around them, and what information about oneself it is appropriate for them to have.” From: James Rachels, Why Privacy Is Important, Philosophy and Public Affairs, Vol. 4, No. 4 (Summer 1975) ___________________________________________________ [Note: In 1975, Philosophy and Public Affairs, than an influential scholarly quarterly, invited academe’s leading social policy theorists to address what seemed to be America’s overriding concern: privacy. Not surprisingly, each of the published articles mirrored its author’s academic specialization and personal predisposition, with ethicist James Rachels’s contribution reflecting his grounding in utilitarianism. Rachels was not the first thinker to address what effect privacy had on individuals, but while other writers identified large-‐scale consequences (e.g., with privacy’s offering, as Charles Fried wrote, “the necessary context for relationships which we would hardly be human if we had to do without“) Rachels targeted privacy’s specific and practical function, the ordering of our relationships: “[P]rivacy is necessary if we are to maintain the variety of social relationships with other people that we want to have. . . [H]owever one conceives one’s relations with other people, there is inseparable from that conception an idea of how it is appropriate to behave with and around them, and what information about oneself it is appropriate for them to have.”] [T]he first element of a theory of privacy should be a characterization of the special interest we have in being able to be free from certain kinds of intrusions.” * * * Why, exactly, is privacy important to us? There is no one simple answer to this question, since people have a number of interests that may be harmed by invasions of their privacy. (a) Privacy is sometimes necessary to protect people’s interests in competitive situations. * * * (b) In other cases someone may want to keep some aspect of his life or behavior private simply because it would be embarrassing for other people to know about it. There is a splendid example of this in John Barth’s [1958] novel End of the Road. The narrator of the story, Jake Homer, is with Joe Morgan’s wife, Rennie, and they are approaching the Morgan house where Joe is at home alone:

“Want to eavesdrop?” I whispered impulsively to Rennie. “Come on, it’s great! See the animals in their natural habitat.” Rennie looked shocked. “What for?” “You mean you never spy on people when they’re alone? It’s wonderful! Come on, be a sneak! It’s the most unfair thing you can do to a person.” “You disgust me, Jake!” Rennie hissed. “He’s just reading. You don’t know Joe at all, do you? “What does that mean?” “Real people aren’t any different when they’re alone. No masks. What you see of them is authentic.” Quite reluctantly, she came over to the window and peeped in beside me. * * * Joe Morgan, back from his Boy Scout meeting, had evidently intended to do some reading, for there were books lying open on the writing table and on the floor beside the bookcase. But Joe wasn’t reading. He was standing in the exact center of the bare room, fully dressed, smartly executing military commands. * * * He saluted briskly, his cheeks blown out and this tongue extended, and then proceeded to cavort about the room-‐spinning, pirouetting, bowing, leaping, kicking. I watched entranced by his performance. * * *

The scene continues even more embarrassingly. (c) There are several reasons why medical records should be kept private, having to do with the consequences to individuals of facts about them becoming public knowledge. * * * These examples illustrate the variety of interests that may be protected by guaranteeing people’s privacy, and it would be easy to give further examples of the same general sort. However, I do not think that examining such cases will provide a complete understanding of the importance of privacy, for two reasons. First, these cases all involve relatively unusual sorts of situations, in which someone has something to hide or in which information about a person might provide someone with a reason for mistreating him in some way. Thus, reflection on these cases gives us little help in understanding the value which privacy has in normal or ordinary situations. By this I mean situations in which there is nothing embarrassing or shameful or unpopular in what we are doing, and nothing ominous or threatening connected with its possible disclosure. * * * We need an account of the value which privacy has for us, not only in the few special cases but in the many common and unremarkable cases as well. Second, even those invasions of privacy that do result in embarrassment or in some specific harm to our other interests are objectionable on other grounds. * * * We have a “sense of privacy”[that] cannot adequately be explained merely in terms of our fear of being embarrassed or disadvantaged in one of these obvious ways. An adequate account of privacy should help us to understand what makes something “someone’s business” and why intrusions into things that are “none of your business” are, as such, offensive. * * * II I want now to give an account of the value of privacy based on the idea that there is a close connection between our ability to control who has access to us and to information about us, and our ability to create and maintain different sorts of social relationships with different people. According to this account, privacy is necessary if we are to maintain the variety of social relationships with other people that we want to have, and that is why it is important to us. * * *

The first point I want to make about these relationships is that, often, there are fairly definite patterns of behavior associated with them. Our relationships with other people determine, in large part, how we act toward them and how they behave toward us. Moreover, there are different patterns of behavior associated with different relationships. * * * It is sometimes suggested that there is something deceitful or hypocritical about such differences in behavior. It is suggested that underneath all the role-‐playing there is the “real” person, and that the various “masks” that we wear in dealing with some people are some sort of phony disguise that we use to conceal our “true” selves from them. * * * According to this way of looking at things, the fact that we observe different standards of conduct with different people is merely a sign of dishonesty. Thus the cold-‐hearted businessman who reads poetry to his friends is “really” a gentle poetic soul whose businesslike demeanor in front of his employees is only a false front; and the man who curses and swears when talking to his friends, but who would never use such language around his mother-‐in-‐law, is just putting on an act for her. This, I think, is quite wrong. Of course the man who does not swear in front of his mother-‐in-‐law may be just putting on an act. * * * But it may be that his conception of how he ought to behave with his mother-‐in-‐law is very different linen his conception of how he may behave with his friends. * * * Similarly, the businessman may be putting up a false front for his employees, perhaps because he dislikes his work and has to make a continual, disagreeable effort to maintain the role. But on the other hand may be, quite comfortably and naturally, a businessman with a certain conception of how it is appropriate for a businessman to behave; and this conception is compatible with his also being a husband, a father, and friend, with different conceptions of how it is appropriate to behave with his wife, his children, and his friends. * * * [N]either side of his personality need be the “real” him, any more than any of the others. It is not merely accidental that we vary our behavior with different people according to the different social relationships that we have with them. Rather, the different patterns of behavior are (partly) what define the different relationships; they are an important part of what makes the different relationships what they are. The relation of friendship, for example, involves bonds of affection and special obligations, such as the duty loyalty, which friends owe to one another; but it is also an important part what it means to have a friend that we welcome his company, that we confide in him, that we tell him things about ourselves, and that we show him sides of our personalities which we would not tell or show to just anyone. * * * The same general point can be made about other sorts of human relationships: businessman to employee, minister to congregant, doctor to patient, husband to wife, parent to child, and so on. * * * I do not mean to imply that such relationships are, or ought to be, structured in exactly the same way for everyone. * * * Moreover, the requirements of social roles may vary from community to community. * * The only point that I want to insist on is that however one conceives one’s relations with other people, there is inseparable from that conception an idea of how it is appropriate to behave with and around them, and what information about oneself it is appropriate for them to have. * * * All of this has to do with the way that a crucial part of our lives -‐ our relations with other people -‐ is organized, and as such its importance to us can hardly be exaggerated. Thus we have good reason to object to anything that interferes with these relationships and makes it difficult or impossible for us to maintain them in the way that we want to. Conversely, because our ability to control who has access to

us, and who knows what about us, allows us to maintain the variety of relationships with other people that we want to have, it is, I think, one of the most important reasons why we value privacy. First, consider what happens when two close friends are joined by a casual acquaintance. The character of the group changes; and one of the changes is that conversation about intimate matters is now out of order. * * They could carry on as close friends do, sharing confidences, freely expressing their feelings about things, and so on. But this would mean violating their sense of how it is appropriate to behave around casual acquaintances or strangers. Or they could avoid doing or saying anything which they think inappropriate to do or say around a third party. But this would mean that they could no longer behave with one another in the way that friends do. * * * Again, consider the differences between the way that a husband and wife behave when they are alone and the way they behave in the company of third parties. Alone, they may be affectionate, sexually intimate, have their fights and quarrels, and so on; but with others, a more “public” face is in order. * * * These considerations suggest that we need to separate our associations, at least to some extent, if we are to maintain a system of different relationships with different people. Separation allows us to behave with certain people in the way that is appropriate to the sort of relationship we have with them, without at the same time violating our sense of how it is appropriate to behave with, and in the presence of, others with whom we have a different kind of relationship. Thus, if we are to be able to control the relationships that we have with other people, we must have control over who has access to us. We now have an explanation of the value of privacy in ordinary situations in which we have nothing to hide. The explanation is that, even in the most common and unremarkable circumstances, we regulate our behavior according to the kinds of relationships we have with the people around us. If we cannot control who has access to us, sometimes including and sometimes excluding various people, then we cannot control the patterns of behavior we need to adopt (this is one reason why privacy is an aspect of liberty) or the kinds of relations with other people that we will have. But what about our feeling that certain facts about us are “simply nobody else’s business”? Here, too, I think the answer requires reference to our relationships with people. If someone is our doctor, then it literally is his business to keep track of our health; if someone is our employer, then it literally is his business to know what salary we are paid; our financial dealings literally are the business of the people who extend us credit; and so on. In general, a fact about ourselves is someone’s business if there is a specific social relationship between us which entitles them to know. We are often free to choose whether or not to enter into such relationships, and those who want to maintain as much privacy as possible will enter them only reluctantly. * * * What we cannot do is accept such a social role with respect to another person and then expect to retain the same degree of privacy relative to him that we had before.

Covert observation—spying -‐-‐ is objectionable because it deliberately deceives a person about his world. From: Jeffrey H. Reiman, Privacy, Intimacy, and Personhood, Philosophy & Public Affairs, Vol. 6, No. 1 (Autumn 1976) _______________________________ [Note: One year after Philosophy & Public Affairs published its three-‐part examination of what privacy meant in contemporary life, Jeffrey Reiman, a professor of political philosophy at American University, responded to those essays. Not surprisingly, given his work in locating the philosophical bases of criminology, Professor Reiman stressed the importance of privacy, not to the maintenance of relationships, but to the development of the individual. Specifically, Reiman took issue with both James Reiman and Charles Fried, whose notions of privacy foregrounded the desire and capacity to form bonds with others. Reiman, on the other hand, identified privacy as essential to the development and self-‐awareness of even the recluse: “Privacy is an essential part of the complex social practice by means of which the social group recognizes -‐-‐ and communicates to the individual -‐-‐ that his existence is his own.”] The Summer 1975 issue of Philosophy & Public Affairs featured three articles on privacy, one by Judith Jarvis Thomson, one by Thomas Scanlon in response to Thomson, and one by James Rachels in response to them both. * * * Thomson's argument is a large non sequitur balanced on a small one. She holds that the right to privacy is "derivative" in the sense that each right in the cluster of rights to privacy can be explained by reference to another right and thus without recourse to the right to privacy. * * * Criminology is probably derivative from sociology and psychology and law and political science in just the way that Thomson holds privacy rights to be derivative from rights to person and property. This hardly amounts to a reason for not trying to define the unifying theme of criminological studies-‐at least a large number of criminologists do not think so. In other words, even if privacy rights were a grab-‐bag of property and personal rights, it might still be revealing, as well as helpful , in the resolution of difficult moral conflicts to determine whether there is anything unique that this grab-‐bag protects that makes it worthy of distinction from the f ull field of property and personal rights. * * *

[T]here is indeed something unique protected by the right to privacy. And we are likely to miss it if we suppose that what is protected is just a subspecies of the things generally safe-‐ guarded by property rights and personal rights. And if we miss it, there may come a time when we think we are merely limiting some personal or property right in favor of some greater good , when in fact we are really sacrificing something of much greater value. * * * Scanlon f eels he has refuted Thomson by finding the "special interests" which are the "common foundation" for the right(s) to privacy. He says:

[T]he rights whose violation strikes us as invasion of privacy are many and diverse, and that these rights do not derive from any single overarching right to privacy. I hold, however, that these rights have a common foundation in the special interests that we have in being able to be free from certain kinds of intrusions. * * *

Now on first glance, it is certainly hard to dispute this claim. But it is nonetheless misleading. Scanlon's position is arresting and appears true because it rests on a tautology. * * * Scanlon's position is equivalent to holding that the common foundation of our right to privacy lies in our "privatistic interests." * * * What Scanlon has not told us is why we have a special interest in privacy, that is, a special interest in being free from certain kinds of intrusions; and why it is a legitimate interest, that is, an interest of sufficient importance to warrant protection by our fellow citizens. * * * James Rachels tries to * * * answer precisely the questions Scanlon leaves unanswered. * * * Rachels recognizes that if there is a unique interest to be protected by the right(s) to privacy, it must be an interest simply in being able to limit other people's observation of us or access to information about us-‐even if we have certain knowledge that the observation or information would not be used to our detriment or used at all. * * * Different human relationships are marked -‐-‐ indeed, in part, constituted by -‐-‐ different degrees of sharing personal information. * * * Rachels concludes, "because our ability to control who has access to us, and who knows what about us, allows us to maintain the variety of relationships with other people that we want to have, it is, I think, one of the most important reasons why we value privacy" Rachels acknowledges that his view is similar to that put forth by Charles Fried in An Anatomy of Values. Since, for our purposes, we can regard these views as substantially the same, and since they amount to an extremely compelling argument about the basis of our interest in privacy, it will serve us well to sample Fried's version of the doctrine. He writes that privacy is the necessary context for relationships which we would hardly be human if we had to do without the relationships of love, friendship, and trust. * * * The Rachels-‐Fried theory is this. Only because we are able to withhold personal information about -‐ and forbid intimate observation of-‐ ourselves from the rest of the world, can we give out the personal in-‐ formation -‐-‐ and allow the intimate observations -‐-‐ to friends and/or lovers, that constitute intimate relationships. On this view, intimacy is both signaled and constituted by the sharing of information and allowing of observation not shared with or allowed to the rest of the world. If there were nothing about myself that the rest of the world did not have access to, I simply would not have anything to give that would mark off a relationship as intimate. As Fried says, he man who is generous with his possessions,

but not with himself, can hardly be a friend, nor -‐-‐ and this more clearly shows the necessity of privacy for love -‐-‐ can the man who, voluntarily or involuntarily, shares everything about himself with the world indiscriminately. Presumably such a person cannot enter into a friendship or a love because he has literally squandered the "moral capital" which is necessary for intimate emotional investment in another. Now I find this analysis both compelling and hauntingly distasteful. It is compelling first of all because it fits much that we ordinarily experience. For example, it makes jealousy understandable. * * * This view is also compelling because it meets the basic requirement for identifying a compelling interest at the heart of privacy. * * * The view is distasteful, however, because it suggests a market conception of personal intimacy. The value and substance of intimacy-‐ like the value and substance of my income-‐lies not merely in what I have but essentially in what others do not have. The reality of my intimacy with you is constituted not simply by the quality and intensity of what we share, but by its unavailability to others. * * * As compelling as the Rachels-‐Fried view is then, there is reason to believe it is an example of the high art of ideology: the rendering of aspects of our present possessive market-‐oriented world into the eternal forms of logical necessity. Perhaps the tip-‐off lies precisely in the fact that, on their theory, jealousy -‐-‐ the most possessive of emotions -‐-‐ is rendered rational. All of this is not itself an argument against the Rachels-‐Fried view, but rather an argument for suspicion. * * I think the fallacy in the Rachels-‐Fried view of intimacy is that it overlooks the fact that what constitutes intimacy is not merely the sharing of otherwise withheld information, but the context of caring which makes the sharing of personal information significant. * * * Necessary to an intimate relationship such as friendship or love is a reciprocal desire to share present and future intense and important experiences together, not merely to swap information. * * * In the context of a reciprocal desire to share present and future intense and important experiences, the revealing of personal information takes on significance. The more one knows about the other, the more one is able to understand how the other experiences things, what they mean to him, how they feel to him. In other words the more each knows about the other, the more they are able to really share an intense experience instead of merely having an intense experience alongside one another. The revealing of personal information then is not what constitutes or powers the intimacy. Rather it deepens and fills out, invites, and nurtures, the caring that powers the intimacy. On this view -‐-‐ in contrast to the Rachels-‐Fried view -‐-‐ it is of little importance who has access to personal information about me. What matters is who cares about it and to whom I care to reveal it. * * * So long as I could find someone who did not just want to collect data about me , but who cared to know about me in order to share my experience with me and to whom I cared to reveal information about myself so that person could share my experience with me, and vice versa, I could enter into a meaningful friendship or love relationship. On the Rachels-‐Fried view, it follows that the significance of sexual intimacy lies in the fact that we signal the uniqueness of our love relationships by allowing our bodies to be seen and touched by the loved one in ways that are forbidden to others. But here too, the context of caring that turns physical contact into intimacy is overlooked. * * * Since the content of intimacy is caring, rather than the revealing of information or the granting of access to the body usually withheld from others, there is no necessary limit to the number of persons one can be intimate with , no logical necessity that friendship or love be

exclusive . The limits rather lie in the limits of our capacity to care deeply for others, and of course in the limits of time and energy. * * * I think, however, that there is another equally fundamental ground for rejecting their position: it makes the right to individual privacy "derivative" from the right to social (that is, interpersonal) relationships. And I mean "derivative" in a much more irreversible way than Thomson does. On the Rachels-‐Fried view, my right to parade around naked alone in my house free from observation by human or electronic peeping toms, is not a fundamental right. It is derived from the fact that without this right, I could not reveal my body to the loved one in that exclusive way that is necessary to intimacy on the Rachels-‐Fried view. This strikes me as bizarre. It would imply that a person who had no chance of entering into social relations with others, say a catatonic or a perfectly normal person legitimately sentenced to life imprisonment in solitary confinement, would thereby have no ground for a right to privacy. This must be false, because it seems that if there is a right to privacy it belongs to individuals regardless of whether they are likely to have friends or lovers. * * * [I]f the Rachels-‐Fried theory of the relationship of privacy and intimacy were true, it would not give us a fundamental interest that can provide the foundation for a right to privacy for all human individuals. I believe, however, that such a fundamental interest can be unearthed. Stanley I. Benn's theory of the foundation of privacy * * * attempts to base the right to privacy on the principle of respect for persons. * * * The underpinning of a claim not to be watched without leave will be more general if it can be grounded in this way on the principle of respect for persons than on a utilitarian duty to avoid inflicting suffering. * * * But respect for persons will sustain an objection even to secret watching, which may do no actual harm at all. Covert observation – spying -‐-‐ is objectionable because it deliberately deceives a person about his world [that is, it transforms the situation he thinks is unobserved into one which is observed], thwarting, for reasons that cannot be his reasons, his attempts to make a rational choice. One cannot be said to respect a man as engaged on an enterprise worthy of consideration if one knowingly and deliberately alters his conditions of action, concealing the fact from him. * * Benn's view is that the right to privacy rests on the principle of respect for persons as choosers. Covert observation or unwanted overt observation deny this respect because they transform the actual conditions in which the person chooses and acts, and thus make it impossible for him to act in the way he set out to act, or to choose in the way he thinks he is choosing. This too is a compelling analysis. * * * [But] Benn's theory gives us too much because it appears to establish a person's right never to be observed when he thought he wasn't being observed, and never to be overtly observed when he didn't wish it. * * * Benn writes,

it cannot be sufficient that I do not want you to observe something; for the principle of respect to be relevant, it must be something about my own person that is in question, otherwise the principle would be so wide that a mere wish of mine would be a prima facie reason for everyone to refrain from observing and reporting on anything at all. * * * The principle of privacy proposed here is, rather, that any man who desires that he himself should not be an object of scrutiny has a reasonable claim to immunity.

Benn goes on to say that what is rightly covered by this immunity are one's body and those things, like possessions , which the conventions of a culture may cause one to think of as part of one's identity.

But * * * Benn has moved from the principle that respect for me as a person dictates that I am entitled not to have the conditions in which I choose altered by unknown or unwanted observation, to the principle that I am entitled to have those things bound up with my identity exempt from unknown or unwanted observation. * * * [T]his follows only if * * * the closer something is to my identity, the worse it is for others to tamper with it. But this is after all just an abstract version of the right to privacy itself. And since Benn has not shown that it follows from the principle of respect for persons as choosers, his argument presupposes what he seeks to establish. * * * [T]hough we have moved quite a bit further in the direction of the foundation of privacy, we have still not reached our destination. What we are looking for is a fundamental interest, connected to personhood, which provides a basis for a right to privacy to which all human beings are entitled. * * * I proceed now to the consideration of * * * such a fundamental interest. Privacy is a social practice. It involves a complex of behaviors. * * * Privacy is a social ritual by means of which an individual's moral title to his existence is conferred. Privacy is an essential part of the complex social practice by means of which the social group recognizes -‐-‐ and communicates to the individual -‐-‐that his existence is his own. And this is a precondition of personhood. To be a person, an individual must recognize not just his actual capacity to shape his destiny by his choices. He must also recognize that he has an exclusive moral right to shape his destiny. And this in turn presupposes that he believes that the concrete reality which he is, and through which his destiny is realized, belongs to him in a moral sense. * * * [P]rivacy is necessary to the creation of selves out of human beings, since a self is at least in part a human being who regards his existence -‐-‐ his thoughts, his body, his actions -‐-‐as his own. Thus the relationship between privacy and personhood is a twofold one. First, the social ritual of privacy seems to be an essential ingredient in the process by which "persons" are created out of pre-‐personal infants. It conveys to the developing child the recognition that this body to which he is uniquely "connected" is a body over which he has some exclusive moral rights. Secondly, the social ritual of privacy confirms, and demonstrates respect for, the personhood of already developed persons. * * * And of course, to the extent that we believe that the creation of "selves" or "persons" is an ongoing social process -‐-‐ not just something which * * * occurs once and for all during childhood. * * * Erving Goff man's classic study, "On the Characteristics of Total lnstitutions" * * * says of total institutions that "each is a natural experiment on what can be done to the self." * * * [I]n each case total deprivation of privacy is an essential ingredient in the regimen. * * * [H]is analysis provides poignant testimony * * * [of] the degree to which the self requires the social rituals of privacy to exist. * * * On the outside, the individual can hold objects of self-‐feeling -‐-‐ such as his body, his immediate actions, his thoughts, and some of his possessions -‐-‐ clear of contact with alien and contaminating things. But in total institutions these territories of the self are violated. * * * [H]ow do I know that I have a unique moral right to this body? It is not enough to say that it is connected to my consciousness, since that simply repeats the question or begs the question of what makes these thoughts my consciousness. * * * Ownership in the moral sense presupposes a social institution. It is based upon a complex social practice. A social order in which bodies were held to belong to others or to the collectivity * * * might be thought of as displaying the ultimate logic of totalitarianism. * * * For a society to exist in which individuals do not own their bodies, what is necessary is that people not be treated as if entitled to control what the bodies they can f eel and move do, or what is done to those

bodies -‐-‐ in particular that they not be treated as if entitled to determine when and by whom that body is experienced . This suggests that there are two essential conditions of moral ownership of one's body: the right to do with my body what I wish, and the right to control when and by whom my body is experienced. This in turn reflects the fact that things can be appropriated in two ways: roughly speaking, actively and cognitively. That is, something is "mine" to the extent that I have the power to use it, to dispose of it as I see fit. But additionally there is a way in which something becomes "mine" to the extent that I know it. What I know is "my" knowledge ; what I experience is "my" experience. * * * Ownership * * * requires that the individual have control over whether or not his physical existence becomes part of someone else's experience . That is, it requires that the individual be treated as entitled to determine when and by whom his concrete reality is experienced. Moral ownership in the full sense requires the social ritual of privacy. As I sit among my friends, I know this body is mine because * * * I am entitled to do with this body what I wish. Secondly, but also essential, I know this body is mine because unlike any other body present, I have in the past taken it outside of the range of anyone's experience but my own. * * * [T]he same thing can be said about the thoughts of which I am aware. That there are thoughts, images, reveries and memories of which only I am conscious does not make them mine in the moral sense.* * * Ownership of my thoughts requires a social practice as well. It has to do with learning that I can control when, and by whom, the thoughts in my head will be experienced by someone other than myself and learning that I am entitled to such control-‐that I will not be forced to reveal the contents of my consciousness, even when I put those contents on paper. The contents of my consciousness become mine because they are treated according to the ritual of privacy. It may seem that this is to return full circle to Thomson's view that the right to privacy is just a species of the rights over person and property. I would argue that it is more fundamental. The right to privacy is the right to the existence of a social practice which makes it possible for me to think of this existence as mine. * * * Indeed, it is only when I can call this physical existence mine that I can call objects somehow connected to this physical existence mine . That is, the transformation of physical possession into owner ship presupposes ownership of the physical being I am. Thus the right to privacy protects something that is presupposed by both personal and property rights. * * * Personal and property rights presuppose an individual with title to his existence, and privacy is the social ritual by which that title is conferred. The right to privacy, then, protects the individual's interest in becoming, being, and remaining a person. * * * It is sufficient that I can control whether and by whom my body is experienced in some significant places and that I have the real possibility of repairing to those places. It is a right which protects my capacity to enter into intimate relations, not because it protects my reserve of generally withheld information, but because it enables me to make the commitment that underlies caring as my commitment uniquely conveyed by my thoughts and witnessed by my actions.

The result was more and more an attempt to withdraw from contact with others, to be shielded by silence, even to attempt to stop feeling in order for the feelings not to show. From: Richard Sennett, The Fall of Public Man, 1977 ________________________________________________ [Note: In 2013, George Washington University Law School professor Jeffrey Rosen plugged The Fall of Public Man (1977) as one of his five favorite books about privacy, but Sennett’s thoughtful analysis of the “culture of intimacy” is far from an accolade to the “right to be left alone.” Rather, Sennett, a professor of sociology at NYU and the London School of Economics who focuses on the effects of modern living in urban societies, finds in America’s preoccupation with the “private” an identifiable civic evil -‐-‐ a form of popular tyranny that will create a society of narcissists and fatally diminish the possibility of community cooperation: ultimately a privacy-‐driven culture, Sennett writes, “creates demands for autonomy from the outside world, for being left alone by it rather than demanding that the outside world itself change.] [I] have * * * assembled this picture of the rise and fall of secular public culture in order to * * * create a perspective on beliefs, aspirations, and myths of modern life which seem to be humane but are in fact dangerous. The reigning belief today is that closeness between persons is a moral good. The reigning aspiration today is to develop individual personality. * * * The reigning myth today is that the evils of society can all be understood as evils of impersonality, alienation, and coldness. The sum of these three is an ideology of intimacy. * * * The belief in closeness between persons as a moral good is in fact the product of a profound dislocation which capitalism and secular belief produced in the last century. Because of this dislocation, people sought to find * * * in the private realms of life, especially in the family, some principle of order in the perception of personality. Thus the past built a hidden desire for stability in the overt desire for closeness between human beings.

Even as we have revolted against the stern sexual rigidities of the Victorian family, we continue to burden close relations with others with these hidden desires for security, rest, and permanence. When the relations cannot bear these burdens, we conclude there is something wrong with the relationship, rather than with the unspoken expectations. * * * The aspiration to develop one’s personality through experiences of closeness with others has a similar hidden agenda. The crisis of public culture in the last century taught us to think about the harshness, constraints, and difficulties which are the essence of the human condition in society as overwhelming. We may approach them through a kind of passive, silent spectatorship, but to challenge them, to become enmeshed in them, is thought to be at the expense of developing ourselves.* * * But what kind of personality develops through experiences of intimacy? * * * As a result of the immense fear of public life which gripped the last century, there results today a weakened sense of human will. * * * [T]he mythology that men are more important than measures (to use Junius's phrase) is revealed really as a recipe for political pacification. * * * In response to the fear of emptiness, people conceive of the political as a realm in which personality will be strongly declared. Then they become the passive spectators to a political personage who offers them his intentions, his sentiments, rather than his acts, for their consumption, Or, the more people conceive of the political realm as the opportunity for revealing themselves to each other through e sharing of a common, collective personality, the more are they diverted from using their fraternity to change social conditions. * * * A rationale of refusing to negotiate, of continual purge of outsiders, results from the supposedly humanitarian desire to erase impersonality in social relations. * * * The pursuit of common interests is destroyed in the search for a common identity. * * * [P]ersonality in public destroyed the public by making people fearful of betraying their emotions to others involuntarily. The result was more and more an attempt to withdraw from contact with others, to be shielded by silence, even to attempt to stop feeling in order for the feelings not to show. * * * [T]he terms of expression moved * * * to the revelation of one's personality. * * * We deny * * * that there ought to be any barriers in communication between people. * * * And yet, though we have enshrined the idea of ease of communication, we are surprised that the "media" results in ever greater passivity on the part of those who are the spectators. * * * [W]e deny the basic truth which once formed a public culture: public culture can succeed only to the extent that people limit what they express to one another. * * * We simply deny, in these various ways, limits upon the self. * * * The structure of an intimate society is twofold. Narcissism is mobilized in social relations. * * * For narcissism to be mobilized in a society, for people to focus on intangible tones of feeling and motive, a sense of group ego interest must be suspended. This group ego consists in a sense of what people need, want, or demand, no matter what their immediate emotional impressions. * * * The suspension of [public] ego interests has grown into a systematic encouragement of narcissistic absorption by centering social transactions on an obsession with motivation. The self no longer concerns man as actor or man as maker; it is a self composed of intentions and possibilities. * * * [N]ow what

matters is not what you have done but how you feel about it. * * * [This picture] falls short, I think, of conveying the trauma which the reign of intimacy produces in modern life. How is society injured by the blanket measurement of social reality in psychological terms? It is robbed of its civility. * * * It is difficult to speak of civility in modern life without appearing to be a snob or a reactionary. The oldest meaning of the term connects "civility" with the duties of citizenship; today "civility" means either knowing which [vintages of wine] to decant or refraining from noisy and unseemly political demonstrations. To recover that obsolete meaning of civility and relate it to the frame of public life, I would de6ne civility as follows: it is the activity which protects people from each other and yet allows them to enjoy each other's company. * * * Civility has as its aim the shielding of others from being burdened with oneself. * * * To speak of incivility is to speak of * * * burdening others with oneself; it is the decrease in sociability with others this burden of personality creates. * * * But incivility is also built into the very fabric of modern society itself. Two of these structures of incivility will concern us. One is the appearance of incivility in modern political leadership, particularly in the work of charismatic leaders. * * * Leadership on these terms is a form of seduction. The structures of domination especially remain unchallenged when people are led into electing politicians who sound angry, as if ready to change things; these politicians are, by the alchemy of personality, freed from translating angry impulses into action. The second incivility * * * is the perversion of fraternity in modern communal experience. The narrower the scope of a community formed by collective personality, the more destructive. * * * Fraternity has become empathy for a select group of people allied with rejection of those not within the local circle. This rejection creates demands for autonomy from the outside world, for being left alone by it rather than demanding that the outside world itself change. * * * Class as a social condition, with rules of its own, rules which can be changed, is lost as a perception. * * * [I]n what sense is intimacy a ' tyranny? A fascist state is one form of intimate tyranny, the drudgery of making a living, feeding the children, and watering the lawn is another, but neither of these is appropriate to describe the peculiar trials of a culture without a public life. * * * Intimate tyranny can * * * stand for a kind of political catastrophe, the police state in which all one's activities, friends, and beliefs pass through the net of governmental surveillance. * * * But tyranny itself can be something more subtle. One of the oldest usages of the word "tyranny" in political thought is as a synonym for sovereignty. When all matters are referred to a common, sovereign principle or person, that principle or person tyrannizes the life of a society. This governing of a multitude of habits and actions by the sovereign authority of a single source need not arise by brute coercion; it can equally arise by a seduction. * * *An institution can rule as a single font of authority; a belief can serve as a single standard for measuring reality. Intimacy is a tyranny in ordinary life of this last sort. It is not the forcing, but the arousing of a belief in one standard of truth to measure the complexities of social reality. It is the measurement of society in

psychological terms. And to the extent that this seductive tyranny succeeds, society itself is deformed. * * * Intimacy is a field of vision and an expectation of human relations. It is the localizing of human experience, so that what is close to the immediate circumstances of life is paramount. * * * [But the] closer people come, the less sociable, the more painful, the more fratricidal their relations. [T]he defeat that intimate contact deals to sociability is rather the result of a long historical process, one in which the very terms of human nature have been transformed, into that individual, unstable, and self-‐absorbed phenomenon we call '"personality." That history is of the erosion of a delicate balance which maintained society in the first flush of its secular and capitalist existence. It was a balance between public and private life, a balance between an impersonal realm in which men could invest one kind of passion and a personal realm in which they could invest another. * * * As both secularity and capitalism arrived at new forms in the last century, * * * [m]en came to believe that * * * every event in their lives must have a meaning in terms of defining themselves, but what this meaning was, the instabilities and contradictions of their lives made it difficult to say. Yet the sheer attention and involvement in matters of personality grew ever greater. Gradually this mysterious, dangerous force which was the self came to define social relations. It became a social principle. At that point, the public realm of impersonal meaning and impersonal action began to wither. . The society we inhabit today is burdened with the consequences of that history, the effacement of the res publica by the belief that social meanings are generated by the feelings of individual human beings. * * * In sum, the belief in direct human relations on an intimate scale has seduced us from converting our understanding of the realities of power into guides for our own political behavior. The result is that the forces of domination or inequity remain unchallenged . * * *

Where our rights in this area do lie is, I think, here: we have a right that certain steps shall not be taken to find out facts, and we have a right that certain uses shall not be made of facts.

From: Judith Jarvis Thomson, The Right to Privacy. Philosophy and Public Affairs, Vol. 4, No. 4 (Summer 1975) __________________________________________________

[NOTE: Four decades after its publication, M.I.T. Professor Judith Jarvis Thomson’s contribution to the 1975 “privacy edition” of Philosophy and Public Affairs continues to generate controversy. Informed by a background in metaphysics – i.e., asking not “what is its value,” or “what does it do,” but “is it there” – Thomson examined the right to privacy and concluded there wasn’t one. Like her equally controversial 1971 defense of abortion, “The Right to Privacy” turns on the application of Thomson’s signature “thought experiments,” hypothetical situations demanding that philosophical issues be considered in practical terms. In conclusion, Thomson found that privacy was not an independent concept, but a derivative of more concrete rights to control over one’s body, one’s property, or one’s ideas. Some invasions of the right to privacy, Thomson decided, were simply demonstrations of bad manners. “Indeed, one can logically argue that the concept of a right to privacy was never required in the first place, and that its whole history is an illustration of how well-‐meaning but impatient academicians can upset the normal development of the law by pushing it too hard.” Ouch.]

I.

Perhaps the most striking thing about the right to privacy is that nobody seems to have any very clear idea what it is. Consider, for example, the familiar proposal that the right to privacy is the right "to be let alone." On the one hand, this doesn't seem to take in enough. The police might say, "We grant we used a special X-‐ray device on Smith, so as to be able to watch him through the walls of his house; we grant we trained an amplifying device on him so as to be able to hear everything he said; but we let him strictly alone: we didn't touch him, we didn't even go near him-‐our devices operate at a distance."

Anyone who believes there is a right to privacy would presumably believe that it has been violated in Smith's case; yet he would be hard put to explain precisely how, if the right to privacy is the right to be let alone. And on the other hand, this account of the right to privacy lets in far too much. If I hit Jones on the head with a brick I have not let him alone. Yet, while hitting Jones on the head with a brick is

surely violating some right of Jones', doing it should surely not turn out to violate his right to privacy. Else, where is this to end? Is every violation of a right a violation of the right to privacy?

* * * I suggest, then, that we look at some specific, imaginary cases in which people would say, "There, in that case, the right to privacy has been violated," and ask ourselves precisely why this would be said, and what, if anything, would justify saying it.

II

But there is a difficulty to be taken note of first. * * * Suppose that my husband and I are having a fight, shouting at each other as loud as we can; and suppose that we have not thought to close the windows, so that we can easily be heard from the street outside. It seems to me that anyone who stops to listen violates no right of ours; stopping to listen is at worst bad, Not Nice, not done by the best people. But now suppose, by contrast, that we are having a quiet fight, behind closed windows, and cannot be heard by the normal person who passes by; and suppose that someone across the street trains an amplifier on our house, by means of which he can hear what we say; and suppose that he does this in order to hear what we say. It seems to me that anyone who does this does violate a right of ours, the right to privacy, I should have thought.

But there is room for disagreement. It might be said that in neither case is there a violation of a right, that both are cases of mere bad behavior -‐-‐ though no doubt worse behavior in the second case than in the first. * * * Or, alternatively, it might be said that in both cases there is a violation of a right, the right to privacy in fact, but that the violation is less serious in the first case than in the second.

I think that these would both be wrong. I think that we have in these two cases, not merely a difference in degree, but a difference in quality: that the passerby who stops to listen in the first case may act badly, but violates no one's rights, whereas the neighbor who uses an amplifier in the second case does not merely act badly but violates a right, the right to privacy. * * *

But there is one thing perhaps worth drawing attention to here: doing so may perhaps diminish the inclination to think that a right is violated in both cases. What I mean is this. There is a familiar account of rights -‐-‐ I speak now of rights generally, and not just of the right to privacy -‐-‐ according to which a man's having a right that something shall not be done to him just itself consists in its being the case that anyone who does it to him acts badly or wrongly or does what he ought not do. * * *

But * * * There are many, many things we ought not do to people, things such that if we do them to a person, we act badly, but which are not such that to do them is to violate a right of his. * * *

Indeed, it is possible that an act which is not a violation of a right should be a far worse act than an act which is. * * * From the point of view of conduct, of course, this doesn't really matter: bad behavior is bad behavior, whether it is a violation of a right or not. * * *

III

To return, then, to the two cases I drew attention to, and which I suggest we take to differ in this way: in one of them a right is violated, in the other not. It isn't, I think, the fact that an amplifying device is used in the one case and not in the other that is responsible for this difference. On the one hand, consider someone who is deaf: if he passes by while my husband and I are having a loud fight at an open

window and turns up his hearing-‐aid so as to be able to hear us, it seems to me he no more violates our right to privacy than does one who stops to listen and can hear well enough without a hearing-‐aid. And on the other hand, suppose that you and I have to talk over some personal matters. It is most convenient to meet in the park, and we do so, taking a bench far from the path since we don't want to be overheard. It strikes a man to want to know what we are saying to each other in that heated fashion, so he creeps around in the bushes behind us and crouches back of the bench to listen. He thereby violates the right to privacy fully as much as if he had stayed a hundred yards away and used an amplifying device to listen to us. IV * * * Consider a man who owns a pornographic picture. He wants that nobody but him shall ever see that picture-‐perhaps because he wants that nobody shall know that he owns it. * * * So he keeps it locked in his wall-‐safe, and takes it out to look at only at night or after pulling down the shades and closing the curtains. We have heard about his picture, and we want to see it, so we train our X-‐ray device on the wall-‐safe and look in. To do this is, I think, to violate a right of his -‐-‐ the right to privacy, I should think. No doubt people who worry about violations of the right to privacy are not worried about the possibility that others will look at their possessions. At any rate, this doesn't worry them very much. That it is not nothing, however, comes out when one thinks on the special source of discomfort there is if a burglar doesn't go straight for the TV set and the silver, and then leave, but if he stops for a while just to look at things -‐-‐ e.g. at your love letters or at the mound of torn socks on the floor of your closet. * * * [T]he burglar's merely looking around in that way might make the episode feel worse than it otherwise would have done. So I shall suppose that we do violate this man's right to privacy if we use an X-‐ray device to look at the picture in his wall-‐safe. And now let us ask how and why. To own a picture is to have a cluster of rights in respect of it. The cluster includes, for example, the right to sell it to whomever you like, the right to give it away, the right to tear it, the right to look at it. These rights are all "positive rights": rights to do certain things to or in respect of the picture. To own a picture is also to have certain "negative rights" in respect of it, that is, rights that others shall not do certain things to it -‐-‐ thus, for example, the right that others shall not sell it or give it away or tear it. Does owning a picture also include having the negative right that others shall not look at it? I think it does. * * * If someone is about to tear his picture, he can snatch it away: it's his, so he has a right that nobody but him shall tear it. * * * [H]e has not merely the right to do everything he can (within limits) to prevent people from tearing it, he has also the right that nobody shall tear it. * * * Suppose we desperately want to tear his picture. He locks it in his wall-‐safe to prevent us from doing so. And suppose we are so eager that we buy a penetrating long-‐distance picture-‐tearer: we sit quietly in our apartment across the street, train the device on the picture in the wall-‐safe, press the button-‐and lo! we have tom the picture. The fact that he couldn't protect his picture against the action of the device doesn't make it all right that we use it.

Again, suppose that there was a way in which he could have protected his picture against the action of the device: the rays won't pass through platinum, and he could have encased the picture in platinum. But he would have had to sell everything else he owns in order to pay for the platinum. The fact he didn't do this does not make it all right for us to have used the device. * * * However, to have a right isn't always to claim it. [T]o own a picture is to have (among other rights) the right that others shall not tear it. Yet * * * while not positively wanting anyone else to tear the picture, you might not care whether or not it is torn, and therefore you might simply * * * leave it where I fell amongst the things the children are in process of wrecking. Or * * * you might * * * in a fit of absent-‐mindedness leave it in some place such that another person would have to go to some trouble if he is to avoid tearing it, or leave it in some place such that another person could not reasonably be expected to know that it still belonged to anybody. Similarly, you might want someone else to look at your picture and therefore (I) invite him to, or * * * you might not care whether or not it is looked at, and therefore you might simply let it be looked at. Or again still, you might positively want that nobody shall look at the picture, and yet in a fit of absent-‐mindedness leave it in some place such that another person would have to go to some trouble if he is to avoid looking at it (at least, avert his eyes) or leave it in some place such that another person could not reasonably be expected to know that it still belonged to anybody. In all of these cases, it is permissible for another person on the one hand to tear the picture, on the other to look at it: no right of the owner's is violated. I think it fair to describe them as cases in which, though the owner had a right that the things not be done, he waived the right. * * * It is not at all easy to say under what conditions a man has waived a right -‐-‐ by what acts of commission or omission and in what circumstances. The conditions vary, according as the right is more or less important; and while custom and convention, on the one hand, and the cost of securing the right, on the other hand, play very important roles, it is not clear precisely what roles. Nevertheless there plainly is such a thing as waiving a right; and given a man has waived his right to a thing, we violate no right of his if we do not accord it to him. * * * It suffices here, however, to stress one thing about rights: a man may have had a right that we shall not do a thing, he may even still have a right that we shall not do it, consistently with its being the case that we violate no right of his if we go ahead. * * * I said earlier that when we trained our X-‐ray device on that man's wall-‐safe in order to have a look at his pornographic picture, we violated a right of his, the right to privacy, in fact. It now turns out (if I am right) that we violated a property right of his, specifically the negative right that others shall not look at the picture, this being one of the (many) rights which his owning the picture consists of. * * * V. We do not, of course, care nearly as much about our possessions as we care about ourselves. We do not want people looking at our torn socks; but it would be much worse to have people watch us make faces at ourselves in the mirror when we thought no one was looking or listen to us while we fight with our families. So you might think I have spent far too much time on that pornographic picture.

But in fact, if what I said about pornographic pictures was correct, then the point about ourselves comes through easily enough. For if we have fairly stringent rights over our property, we have very much more stringent rights over our own persons. None of you came to possess your knee in exactly the way in which you came to possess your shoes or your pornographic pictures: * * * you neither bought nor inherited your left knee. And I suppose you could not very well sell your left knee. But * * * if anyone wanted to, you are the only one with a right to sell yours. * * * [I]t also includes your having the right that nobody else shall touch it or look at it. Of course you might invite somebody to touch or look at your left knee; or you might let someone touch or look at it; or again still, you might in a fit of absent-‐mindedness leave it in some place such that another person would have to go to some trouble if he is to avoid touching or looking at it. In short, you might waive your right that your left knee not be touched or looked at. * * * That we have such a right comes out when we notice that if a man comes for some reason or another to want his face not to be looked at, and if he therefore keeps it covered, and if we then use an X-‐ray device in order to be able to look at it through the covering, we violate a right of his in respect of it, and the right we violate is surely the right that his face shall not be looked at. * * * Listening, I think, works in the same way as looking. * * * These rights -‐-‐ the right to not be looked at and the right to not be listened to-‐are analogous to rights we have over our property. It sounds funny to say we have such rights. They are not mentioned when we give lists of rights. When we talk of rights, those that come to mind are the grand ones: the right to life, the right to liberty, the right to not be hurt or harmed, and property rights. Looking at and listening to a man do not harm him, but neither does stroking his left knee harm him, and yet he has a right that it shall not be stroked without permission. Cutting off all a man's hair while he's asleep will not harm him, nor will painting his elbows green; yet he plainly has a right that these things too shall not be done to him. These un-‐grand rights seem to be closely enough akin to be worth grouping together under one heading. For lack of a better term, I shall simply speak of "the right over the person," a right which I shall take to consist of the un-‐grand rights I mentioned, and others as well. When I began, I said that if my husband and I are having a quiet fight behind closed windows and cannot be heard by the normal person who passes by, then if anyone trains an amplifier on us in order to listen he violates a right, the right to privacy, in fact. It now turns out (if I am right) that he violates our right to not be listened to, which is one of the rights included in the right over the person. * * * It begins to suggest itself, then, as a simplifying hypothesis, that the right to privacy is itself a cluster of rights, and that it is not a distinct cluster of rights but itself intersects with the cluster of rights which the right over the person consists in and also with the cluster of rights which owning property consists in. That is, to use an X-‐ray device to look at the picture is to violate a right (the right that others shall not look at the picture) which is both one of the rights which the right to privacy consists in and also one of the rights which property-‐ownership consists in. Again, that to use an amplifying device to listen to us is to violate a right (the right to not be listened to) which is both one of the rights which the right to privacy consists in and also one of the rights which the right over the person consists in.

Some small confirmation for this hypothesis comes from the other listening case. I had said that if my husband and I are having a loud fight, behind open windows, so that we can easily be heard by the normal person who passes by, then if a passerby stops to listen, he violates no right of ours, and so in particular does not violate our right to privacy. Why doesn't he? I think it is because, though he listens to us, we have let him listen (whether intentionally or not), we have waived our right to not be listened to -‐-‐ for we took none of the conventional and easily available steps (such as closing the windows and lowering our voices) to prevent listening. But this would only be an explanation if waiving the right to not be listened to were waiving the right to privacy, or if it were at least waiving the only one among the rights which the right to privacy consists in which might plausibly be taken to have been violated by the passerby. * * * VII A great many cases turn up in connection with information. I should say straightaway that it seems to me none of us has a right over any fact to the effect that that fact shall not be known by others. You may violate a man's right to privacy by looking at him or listening to him; there is no such thing as violating a man's right to privacy by simply knowing something about him. Where our rights in this area do lie is, I think, here: we have a right that certain steps shall not be taken to find out facts, and we have a right that certain uses shall not be made of facts. * * * If we use an X-‐ray device to look at a man in order to get personal information about him, then we violate his right to privacy. Indeed, we violate his right to privacy whether the information we want is personal or impersonal. We might be spying on him in order to find out what he does all alone in his kitchen at midnight; or we might be spying on him in order to find out how to make puff pastry, which we already know he does in the kitchen all alone at midnight; either way his right to privacy is violated. But in both cases, the simplifying hypothesis seems to hold: in both cases we violate a right (the right to not be looked at) which is both one of the rights which the right to privacy consists in and one of the rights which the right over the person consists in. What about torturing a man in order to get information? I suppose that if we torture a man in order to find out how to make puff pastry, then though we violate his right to not be hurt or harmed, we do not violate his right to privacy. But what if we torture him to find out what he does in the kitchen all alone at midnight? Presumably in that case we violate both his right to not be hurt or harmed and his right to privacy – the latter, presumably, because it was personal information we tortured him to get. But here too we can maintain the simplifying hypothesis: we can take it that to torture a man in order to find out personal information is to violate a right (the right to not be tortured to get personal information) which is both one of the rights which the right to privacy consists in and one of the rights which the right to not be hurt or harmed consists in. * * * I think it a plausible idea, in fact, that doing something to a man to get personal information from him is violating his right to privacy only if doing that to him is violating some right of his not identical with or included in the right to privacy. Thus writing a man a letter asking him where he was born is no violation of his right to privacy: writing a man a letter is no violation of any right of his. By contrast, spying on a man to get personal information is a violation of the right to privacy, and spying on a man for any reason is a violation of the right over the person, which is not identical with or included in (though it overlaps)

the right to privacy. * * * If a man has a right that we shall not do such and such to him, then he has a right that we shall not do it to him in order to get personal information from him. And his right that we shall not do it to him in order to get personal information from him is included in both his right that we shall not do it to him, and (if doing it to him for this reason is violating his right to privacy) his right to privacy. I suspect the situation is the same in respect of uses of information. If a man gives us information on the condition we shall not spread it, and we then spread it, we violate his right to confidentiality, whether the information is personal or impersonal. If the information is personal, I suppose we also violate his right to privacy -‐-‐ by virtue of violating a right (the right to confidentiality in respect of personal information) which is both one of the rights which the right to privacy consists in and one of the rights which the right to confidentiality consists in. * * * Again, suppose I find out by entirely legitimate means (e.g. from a third party who breaks no confidence in telling me) that you keep a pornographic picture in your wall-‐safe; and suppose that, though I know it will cause you distress, I print the information in a box on the front page of my newspaper, thinking it newsworthy. * * * Do I violate your right to privacy? I am, myself, inclined to think not. * * * [W]hat is violated here is the right to not be caused distress by the publication of personal information, which is one of the rights which the right to privacy consists in, and one of the rights which the right to not be caused distress consists in. Distress, after all, is the heart of the wrong. * * * (My reluctance to go along with this [notion of] a right to not be caused distress by the publication of personal information, [is that such a right] is mostly, if not always, overridden by what seems to me a more stringent right, namely the public's right to a press which prints any and all information, personal or impersonal, which it deems newsworthy; and thus that in the case I mentioned no right is violated, and hence, a fortiori, the right to privacy is not violated.) VIII The question arises, then, whether or not there are any rights in the right to privacy cluster which aren't also in some other right cluster. I suspect there aren't any, and that the right to privacy is everywhere overlapped by other rights. But it's a difficult question. Part of the difficulty is due to its being * * * just what is in this right to privacy cluster. I mentioned at the outset that there is disagreement on cases. * * * What should be said, for example, of the following? (a) The neighbors make a terrible racket every night. Or they cook foul-‐smelling stews. Do they violate my right to privacy? [Or is] their doing this is presumably a violation of another right of mine, roughly, the right to be free of annoyance in my house? (b) The city, after a city-‐wide referendum favoring it, installs loudspeakers to play music in all the buses and subways. Do they violate my right to privacy? * * * I think not * * * if those of us in the minority have a right to be free of what we (though not the majority) regard as an annoyance in public places. (c) You are famous, and photographers follow you around, everywhere you go, taking pictures of you. Crowds collect and stare at you. Do they violate your right to privacy? Some think yes, I think not: * * * if you do go out in public, you waive your right to not be photographed and looked at. But of course you,

like the rest of us, have a right to be free of (what anyone would grant was) annoyance in public places [and,] you have a right that the photographers and crowds not press in too closely. (d) A stranger stops you on the street and asks, "How much do you weigh?" Or an acquaintance, who has heard of the tragedy, says, "How terrible you must have felt when your child was run over by that delivery truck!" Or a cab driver turns around and announces, "My wife is having an affair with my psychoanalyst." Some think that your right to privacy is violated here; I think not. There is an element of coercion in such cases: the speaker is trying to force you into a relationship you do not want, the threat being your own embarrassment at having been impolite if you refuse. But I find it hard to see how we can be thought to have a right against such attempts. * * * (e) Some acquaintances of yours indulge in some very personal gossip about you. Let us imagine that all of the information they share was arrived at without violation of any right of yours, and that none of the participants violates a confidence in telling what he tells. Do they violate a right of yours in sharing the information? * * * [I]t seems to me there is no right not identical with, or included in, the right to privacy cluster.* * * [Moreover,] they don't violate any right of yours. It seems to me we simply do not have rights against others that they shall not gossip about us. (f) A state legislature makes it illegal to use contraceptives. Do they violate the right to privacy of the citizens of that state? No doubt certain techniques for enforcing the statute (e.g., peering into bedroom windows) would be obvious violations of the right to privacy; but is there a violation of the right to privacy in the mere enacting of the statute-‐in addition to the violations which may be involved in enforcing it? I think not. But * * * making a kind of conduct illegal is infringing on a liberty, and we all of us have a right that our liberties not be infringed in the absence of compelling need to do so. IX The fact, supposing it a fact, that every right in the right to privacy cluster is also in some other right cluster does not by itself show that the right to privacy is in any plausible sense a "derivative" right. A more important point seems to me to be this: the fact that we have a right to privacy does not explain our having any of the rights in the right to privacy cluster. * * * I don't have a right to not be looked at because I have a right to privacy; I don't have a right that no one shall torture me in order to get personal information about me because I have a right to privacy; one is inclined, rather, to say that it is because I have these rights that I have a right to privacy. * * * We are confronted with a cluster of rights -‐-‐ a cluster with disputed boundaries -‐-‐ such that most people think that to violate at least any of the rights in the core of the cluster is to violate the right to privacy; but what have they in common other than their being rights such that to violate them is to violate the right to privacy? To violate these rights is to not let someone alone? To violate these rights is to visit indignity on someone? There are too many acts in the course of which we do not let someone alone, in the course of which we give affront to dignity, but in the performing of which we do not violate anyone's right to privacy. * * * [T]he right to privacy is "derivative" in this sense: it is possible to explain in the case of each right in the cluster how come we have it without ever once mentioning the right to privacy. Indeed, the wrongness of every violation of the right to privacy can be explained without ever once mentioning it. Someone tortures you to get personal information from you? He violates your right to not be * * * hurt or harmed, and it is because you have this right that what he does is wrong. Someone looks at your

pornographic picture in your wall-‐safe? He violates your * * * ownership rights – and it is because you have them that what he does is wrong. Someone uses an X-‐ray device to look at you through the walls of your house? He violates your right * * * over your person analogous to the rights you have over your property, and it is because you have these rights that what he does is wrong. In any case, I suggest it is a useful heuristic device in the case of any purported violation of the right to privacy to ask whether or not the act is a violation of any other right, and if not whether the act really violates a right at all. We are still in such deep dark in respect of rights that any simplification at all would be well worth having.

The same technological advances that have made possible non-‐ trespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations

From: United States v. Jones, 132 S. Ct. 945, 946-‐64, 181 L. Ed. 2d 911 (2012) ___________________________________

Justice SCALIA delivered the opinion of the Court.

We decide whether the attachment of a Global–Positioning–System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

I

In 2004 respondent Antoine Jones * * * came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI and Metropolitan Police Department task force. Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones's cellular phone. * * *

Agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used the device to track the vehicle's movements, and once had to replace the device's battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle's location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4–week period.

The Government ultimately obtained a multiple-‐count indictment charging Jones and several alleged co-‐conspirators with * * * conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, * * * Before trial, Jones filed a motion to suppress evidence obtained through the GPS device. The District Court granted the motion only in part, suppressing the data obtained while the vehicle was parked in the garage adjoining Jones's residence. It held the remaining data admissible, because “[a] person traveling in an automobile on public

IV. The Reasonable Expectation of Privacy: Altered by Four Decades?

thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” * * * The jury returned a guilty verdict, and the District Court sentenced Jones to life imprisonment. The United States Court of Appeals for the District of Columbia Circuit reversed the conviction because of admission of the evidence obtained by warrantless use of the GPS device which, it said, violated the Fourth Amendment. * * * II A The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. United States v. Chadwick (1977). We hold that the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a “search.” It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington (C.P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’ ” with regard to search and seizure. * * * Boyd v. United States (1886)). In that case, Lord Camden expressed in plain terms the significance of property rights in search-‐and-‐seizure analysis: “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law.” The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous. Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-‐law trespass, at least until the latter half of the 20th century. * * * Thus, in Olmstead v. United States (1928), we held that wiretaps attached to telephone wires on the public streets did not constitute a Fourth Amendment search because “[t]here was no entry of the houses or offices of the defendants.” Our later cases, of course, have deviated from that exclusively property-‐based approach. In Katz v. United States (1967), we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan's concurrence in that case, which said that a violation occurs when government officers violate a person's “reasonable expectation of privacy.” * * * The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the Government's contentions, because Jones's Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”

As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding. Less than two years later the Court upheld defendants' contention that the Government could not introduce against them conversations between other people obtained by warrantless placement of electronic surveillance devices in their homes. The opinion rejected the dissent's contention that there was no Fourth Amendment violation “unless the conversational privacy of the homeowner himself is invaded.” Alderman v. United States (1969). “[W]e [do not] believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home....” More recently, in Soldal v. Cook County (1992), the Court unanimously rejected the argument that although a “seizure” had occurred “in a ‘technical’ sense” when a trailer home was forcibly removed, no Fourth Amendment violation occurred because law enforcement had not “invade[d] the [individuals'] privacy.” Katz, the Court explained, established that “property rights are not the sole measure of Fourth Amendment violations,” but did not “snuf[f] out the previously recognized protection for property.” As Justice Brennan explained in his concurrence in Knotts, Katz did not erode the principle “that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment. We have embodied that preservation of past rights in our very definition of “reasonable expectation of privacy” which we have said to be an expectation “that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter (1998). Katz did not narrow the Fourth Amendment's scope. The Government contends that several of our post-‐Katz cases foreclose the conclusion that what occurred here constituted a search. It relies principally on two cases in which we rejected Fourth Amendment challenges to “beepers,” electronic tracking devices that represent another form of electronic monitoring. The first case, Knotts, upheld against Fourth Amendment challenge the use of a “beeper” that had been placed in a container of chloroform, allowing law enforcement to monitor the location of the container. We said that there had been no infringement of Knotts's reasonable expectation of privacy since the information obtained—the location of the automobile carrying the container on public roads, and the location of the off-‐loaded container in open fields near Knotts's cabin—had been voluntarily conveyed to the public. But as we have discussed, the Katz reasonable-‐expectation-‐of-‐privacy test has been added to, not substituted for, the common-‐law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. The beeper had been placed in the container before it came into Knotts' possession, with the consent of the then-‐owner. Knotts did not challenge that installation, and we specifically declined to consider its effect on the Fourth Amendment analysis. Knotts would be relevant, perhaps, if the Government were making the argument that what would otherwise be an unconstitutional search is not such where it produces only public information. The Government does not make that argument, and we know of no case that would support it. The second “beeper” case, United States v. Karo (1984), does not suggest a different conclusion. There we addressed the question left open by Knotts, whether the installation of a beeper in a container amounted to a search or seizure. As in Knotts, at the time the beeper was installed the container belonged to a third party, and it did not come into possession of the defendant until later. Thus, the

specific question we considered was whether the installation “with the consent of the original owner constitute[d] a search or seizure ... when the container is delivered to a buyer having no knowledge of the presence of the beeper.” We held not. The Government, we said, came into physical contact with the container only before it belonged to the defendant Karo; and the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo's privacy. That conclusion is perfectly consistent with the one we reach here. Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper's presence, even though it was used to monitor the container's location. * * * Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-‐gathering device, is on much different footing. The Government also points to our exposition in New York v. Class (1986), that “[t]he exterior of a car ... is thrust into the public eye, and thus to examine it does not constitute a ‘search.’ ” That statement is of marginal relevance here since, as the Government acknowledges, “the officers in this case did more than conduct a visual inspection of respondent's vehicle.” By attaching the device to the Jeep, officers encroached on a protected area. In Class itself we suggested that this would make a difference, for we concluded that an officer's momentary reaching into the interior of a vehicle did constitute a search. Finally, the Government's position gains little support from our conclusion in Oliver v. United States (1984) that officers' information-‐gathering intrusion on an “open field” did not constitute a Fourth Amendment search even though it was a trespass at common law. Quite simply, an open field, unlike the curtilage of a home * * * is not one of those protected areas enumerated in the Fourth Amendment. * * * The Government's physical intrusion on such an area—unlike its intrusion on the “effect” at issue here—is of no Fourth Amendment significance. B The concurrence begins by accusing us of applying “18th-‐century tort law.” That is a distortion. What we apply is an 18th-‐century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-‐expectation-‐of-‐privacy test, even when that eliminates rights that previously existed. The concurrence faults our approach for “present[ing] particularly vexing problems” in cases that do not involve physical contact, such as those that involve the transmission of electronic signals. We entirely fail to understand that point. For unlike the concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis. In fact, it is the concurrence's insistence on the exclusivity of the Katz test that needlessly leads us into “particularly vexing problems” in the present case. This Court has to date not deviated from the understanding that mere visual observation does not constitute a search. We accordingly held in Knotts that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Thus, even assuming that the concurrence is correct to say that “[t]raditional surveillance” of Jones for a 4–week period “would have required a large team of agents, multiple vehicles, and perhaps aerial assistance,” our cases suggest that such visual observation is constitutionally permissible. It may be that achieving the same result through electronic

means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question. And answering it affirmatively leads us needlessly into additional thorny problems. The concurrence posits that “relatively short-‐term monitoring of a person's movements on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses” is no good. That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4–week investigation is “surely” too long and why a drug-‐trafficking conspiracy involving substantial amounts of cash and narcotics is not an “extraordinary offens[e]” which may permit longer observation. What of a 2–day monitoring of a suspected purveyor of stolen electronics? Or of a 6–month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here. III The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-‐scale cocaine distribution conspiracy.” We have no occasion to consider this argument. The Government did not raise it below, and the D.C. Circuit therefore did not address it. We consider the argument forfeited. * * * Justice SOTOMAYOR, concurring. I join the Court's opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, “[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area.” In this case, the Government installed a Global Positioning System (GPS) tracking device on respondent Antoine Jones' Jeep without a valid warrant and without Jones' consent, then used that device to monitor the Jeep's movements over the course of four weeks. The Government usurped Jones' property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection. Of course, the Fourth Amendment is not concerned only with trespassory intrusions on property. Rather, even in the absence of a trespass, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” In Katz, this Court enlarged its then-‐prevailing focus on property rights by announcing that the reach of the Fourth Amendment does not “turn upon the presence or absence of a physical intrusion.” As the majority's opinion makes clear, however, Katz 's reasonable-‐expectation-‐of-‐privacy test augmented, but did not displace or diminish, the common-‐law trespassory test that preceded it. Thus, “when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” United States v. Knotts (1983) * * * Justice ALITO's approach, which discounts altogether the constitutional relevance of the Government's physical intrusion on Jones' Jeep, erodes that longstanding protection for privacy expectations inherent in items of property that people possess or control. By contrast, the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically

invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case. Nonetheless, as Justice ALITO notes, physical intrusion is now unnecessary to many forms of surveillance. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory-‐ or owner-‐installed vehicle tracking devices or GPS-‐enabled smartphones. In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion's trespassory test may provide little guidance. But “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” As Justice ALITO incisively observes, the same technological advances that have made possible non-‐trespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Under that rubric, I agree with Justice ALITO that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” In cases involving even short-‐term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention. GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver, 12 N.Y.3d 433 (2009) (“Disclosed in [GPS] data ... will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-‐the-‐hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”). The Government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility.” Illinois v. Lidster (2004). Awareness that the Government may be watching chills associational and expressive freedoms. And the Government's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.” I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one's public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques. * * * I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment's goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance.” United States v. Di Re (1948). More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to

the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-‐mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. * * * Resolution of these difficult questions in this case is unnecessary, however, because the Government's physical intrusion on Jones' Jeep supplies a narrower basis for decision. I therefore join the majority's opinion. Justice ALITO, with whom Justice GINSBURG, Justice BREYER, and Justice KAGAN join, concurring in the judgment. This case requires us to apply the Fourth Amendment's prohibition of unreasonable searches and seizures to a 21st-‐century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle's movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-‐century tort law. By attaching a small GPS device to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels. And for this reason, the Court concludes, the installation and use of the GPS device constituted a search. This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial. I would analyze the question presented in this case by asking whether respondent's reasonable expectations of privacy were violated by the long-‐term monitoring of the movements of the vehicle he drove. I A The Fourth Amendment prohibits “unreasonable searches and seizures,” and the Court makes very little effort to explain how the attachment or use of the GPS device fits within these terms. The Court does not contend that there was a seizure. A seizure of property occurs when there is “some meaningful interference with an individual's possessory interests in that property,” United States v. Jacobsen (1984), and here there was none. Indeed, the success of the surveillance technique that the officers employed was dependent on the fact that the GPS did not interfere in any way with the operation of the vehicle, for if any such interference had been detected, the device might have been discovered. The Court does claim that the installation and use of the GPS constituted a search, but this conclusion is dependent on the questionable proposition that these two procedures cannot be separated for

purposes of Fourth Amendment analysis. If these two procedures are analyzed separately, it is not at all clear from the Court's opinion why either should be regarded as a search. It is clear that the attachment of the GPS device was not itself a search; if the device had not functioned or if the officers had not used it, no information would have been obtained. And the Court does not contend that the use of the device constituted a search either. On the contrary, the Court accepts the holding in United States v. Knotts, (1983), that the use of a surreptitiously planted electronic device to monitor a vehicle's movements on public roads did not amount to a search. The Court argues—and I agree—that “we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’” But it is almost impossible to think of late–18th-‐century situations that are analogous to what took place in this case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach's owner?) The Court's theory seems to be that the concept of a search, as originally understood, comprehended any technical trespass that led to the gathering of evidence, but we know that this is incorrect. At common law, any unauthorized intrusion on private property was actionable, but a trespass on open fields, as opposed to the “curtilage” of a home, does not fall within the scope of the Fourth Amendment because private property outside the curtilage is not part of a “hous[e]” within the meaning of the Fourth Amendment. See Oliver v. United States (1984) * * * B The Court's reasoning in this case is very similar to that in the Court's early decisions involving wiretapping and electronic eavesdropping, namely, that a technical trespass followed by the gathering of evidence constitutes a search. In the early electronic surveillance cases, the Court concluded that a Fourth Amendment search occurred when private conversations were monitored as a result of an “unauthorized physical penetration into the premises occupied” by the defendant. Silverman v. United States (1961). In Silverman, police officers listened to conversations in an attached home by inserting a “spike mike” through the wall that this house shared with the vacant house next door. This procedure was held to be a search because the mike made contact with a heating duct on the other side of the wall and thus “usurp[ed] ... an integral part of the premises.” By contrast, in cases in which there was no trespass, it was held that there was no search. Thus, in Olmstead v. United States (1928), the Court found that the Fourth Amendment did not apply because “[t]he taps from house lines were made in the streets near the houses.” Similarly, the Court concluded that no search occurred in Goldman v. United States (1942), where a “detectaphone” was placed on the outer wall of defendant's office for the purpose of overhearing conversations held within the room. This trespass-‐based rule was repeatedly criticized. In Olmstead, Justice Brandeis wrote that it was “immaterial where the physical connection with the telephone wires was made.” Although a private conversation transmitted by wire did not fall within the literal words of the Fourth Amendment, he argued, the Amendment should be understood as prohibiting “every unjustifiable intrusion by the government upon the privacy of the individual.” See also, e.g., Silverman (Douglas, J., concurring) (“The concept of ‘an unauthorized physical penetration into the premises,’ on which the present decision rests seems to me beside the point. Was not the wrong ... done when the intimacies of the home were tapped, recorded, or revealed? The depth of the penetration of the electronic device—even the degree of its remoteness from the inside of the house—is not the measure of the injury.”) * * *

Katz v. United States (1967), finally did away with the old approach, holding that a trespass was not required for a Fourth Amendment violation. Katz involved the use of a listening device that was attached to the outside of a public telephone booth and that allowed police officers to eavesdrop on one end of the target's phone conversation. This procedure did not physically intrude on the area occupied by the target, but the Katz Court, “repudiate[d]” the old doctrine and held that “[t]he fact that the electronic device employed ... did not happen to penetrate the wall of the booth can have no constitutional significance.” (“[T]he reach of th[e] [Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure”); * * * Kyllo, supra (“We have since decoupled violation of a person's Fourth Amendment rights from trespassory violation of his property”). What mattered, the Court now held, was whether the conduct at issue “violated the privacy upon which [the defendant] justifiably relied while using the telephone booth.” Katz, supra. Under this approach, as the Court later put it when addressing the relevance of a technical trespass, “an actual trespass is neither necessary nor sufficient to establish a constitutional violation.” United States v. Karo (emphasis added). (Compar[e] Katz v. United States (1967) (no trespass, but Fourth Amendment violation), with Oliver v. United States (1984) (trespass, but no Fourth Amendment violation)). In Oliver, the Court wrote: “The existence of a property right is but one element in determining whether expectations of privacy are legitimate. ‘The premise that property interests control the right of the Government to search and seize has been discredited.’ Katz. II The majority suggests that two post-‐Katz decisions—Soldal v. Cook County (1992) and Alderman v. United States (1969)—show that a technical trespass is sufficient to establish the existence of a search, but they provide little support. In Soldal, the Court held that towing away a trailer home without the owner's consent constituted a seizure even if this did not invade the occupants' personal privacy. But in the present case, the Court does not find that there was a seizure, and it is clear that none occurred. In Alderman, the Court held that the Fourth Amendment rights of homeowners were implicated by the use of a surreptitiously planted listening device to monitor third-‐party conversations that occurred within their home. Alderman is best understood to mean that the homeowners had a legitimate expectation of privacy in all conversations that took place under their roof. * * * In sum, the majority is hard pressed to find support in post-‐Katz cases for its trespass-‐based theory. III Disharmony with a substantial body of existing case law is only one of the problems with the Court's approach in this case. I will briefly note four others. First, the Court's reasoning largely disregards what is really important (the use of a GPS for the purpose of long-‐term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car's operation). Attaching such an object is generally regarded as so trivial that it does not provide a basis for recovery under modern tort law. See Prosser & Keeton § 14, at 87 (harmless or trivial

contact with personal property not actionable). But under the Court's reasoning, this conduct may violate the Fourth Amendment. By contrast, if long-‐term monitoring can be accomplished without committing a technical trespass—suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car—the Court's theory would provide no protection.

Second, the Court's approach leads to incongruous results. If the police attach a GPS device to a car and use the device to follow the car for even a brief time, under the Court's theory, the Fourth Amendment applies. But if the police follow the same car for a much longer period using unmarked cars and aerial assistance, this tracking is not subject to any Fourth Amendment constraints.

In the present case, the Fourth Amendment applies, the Court concludes, because the officers installed the GPS device after respondent's wife, to whom the car was registered, turned it over to respondent for his exclusive use. But if the GPS had been attached prior to that time, the Court's theory would lead to a different result. The Court proceeds on the assumption that respondent “had at least the property rights of a bailee,” but a bailee may sue for a trespass to chattel only if the injury occurs during the term of the bailment. See 8A Am.Jur.2d, Bailment § 166, pp. 685–686 (2009). So if the GPS device had been installed before respondent's wife gave him the keys, respondent would have no claim for trespass—and, presumably, no Fourth Amendment claim either.

Third, under the Court's theory, the coverage of the Fourth Amendment may vary from State to State. If the events at issue here had occurred in a community property State or a State that has adopted the Uniform Marital Property Act, respondent would likely be an owner of the vehicle, and it would not matter whether the GPS was installed before or after his wife turned over the keys. In non-‐community-‐property States, on the other hand, the registration of the vehicle in the name of respondent's wife would generally be regarded as presumptive evidence that she was the sole owner.

Fourth, the Court's reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked. For example, suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased. Would the sending of a radio signal to activate this system constitute a trespass to chattels? Trespass to chattels has traditionally required a physical touching of the property.

In recent years, courts have wrestled with the application of this old tort in cases involving unwanted electronic contact with computer systems, and some have held that even the transmission of electrons that occurs when a communication is sent from one computer to another is enough. [Citations omitted.] But may such decisions be followed in applying the Court's trespass theory? Assuming that what matters under the Court's theory is the law of trespass as it existed at the time of the adoption of the Fourth Amendment, do these recent decisions represent a change in the law or simply the application of the old tort to new situations?

IV

A The Katz expectation-‐of-‐privacy test avoids the problems and complications noted above, but it is not without its own difficulties. It involves a degree of circularity, and judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person to which the Katz test looks. *

* * In addition, the Katz test rests on the assumption that this hypothetical reasonable person has a well-‐developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable. On the other hand, concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions. This is what ultimately happened with respect to wiretapping. After Katz, Congress did not leave it to the courts to develop a body of Fourth Amendment case law governing that complex subject. Instead, Congress promptly enacted a comprehensive statute, see 18 U.S.C. §§ 2510–2522, * * * and since that time, the regulation of wiretapping has been governed primarily by statute and not by case law. In an ironic sense, although Katz overruled Olmstead, Chief Justice Taft's suggestion in the latter case that the regulation of wiretapping was a matter better left for Congress * * * has been borne out. B Recent years have seen the emergence of many new devices that permit the monitoring of a person's movements. In some locales, closed-‐circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car's location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen. Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States. * * * “[S]mart phones,” which are equipped with a GPS device, permit more precise tracking. * * * Similarly, phone-‐location-‐tracking services are offered as “social” tools, allowing consumers to find (or to avoid) others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person's expectations about the privacy of his or her daily movements. V In the pre-‐computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-‐term monitoring relatively easy and cheap. In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. * * * To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes. The best that we can do in this case is to apply

existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.

Under this approach, relatively short-‐term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period.

In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4–week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. * * *

For these reasons, I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment. I therefore agree with the majority that the decision of the Court of Appeals must be affirmed.

In using the booth, a person, in return for paying a set toll, expects and intends his conversation to be unmonitored and private and further expects to be in complete control of the degree of privacy his conversation will have.

From: Katz v. United States, 1967 WL 113605 (U.S.), On Writ of Certiorari to the Court of Appeals for the Ninth Circuit, Brief for Petitioner (September 7, 1967) ____________________________________

Questions Presented

1. Whether evidence obtained by attaching an electronic listening and recording device to the top of apublic telephone booth used and occupied by the Petitioner is obtained in violation of the Fourth Amendment to the United States Constitution.

A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth.

B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution.

2. Whether the search warrant used by the Federal Officers in the instant case violated the FourthAmendment to the United States Constitution in that said warrant was (a) not founded on probable cause; (b) an evidentiary search warrant and (c) a general search warrant.

3. In what manner does the holding in Frank v. United States, 347 F. 2d 486 affect this case.

Constitutional Provisions Involved

Fourth Amendment, Constitution of the United States:

V. The Reasonable Expectation of Privacy: Crafted by Litigants

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Fifth Amendment, Constitution of the United States: “No person shall be heard to answer for capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.”

Statement of the Case On March 17, 1965, an eight-‐count indictment was filed against Petitioner, Charles Katz. Each count of the indictment charged a violation of Title 18, U.S.C., §1084 [interstate transmission of bets and wagers and information assisting in the placing of bets and wagers]. Each of said counts involved violations of §1084 on different dates or at different times on the same date. Prior to the trial of the within matter, Petitioner filed a Motion to Suppress Evidence and for Return of Evidence, which motion was denied. Subsequently, Petitioner moved to dismiss the indictment, pursuant to Rule 12 of the Federal Rules of Criminal Procedure, which motion was also denied. Thereafter, Petitioner entered a plea of not guilty, and a trial by court, the Honorable Jesse Curtis, Judge Presiding, was held. On May 20, 1965, the court found Petitioner guilty on all counts as charged. Petitioner's motions for a new trial and for a judgment of acquittal were denied; whereupon, Petitioner was fined the sum of $300.00. On November 17, 1966, the United States Court of Appeals for the Ninth Circuit affirmed the judgment of conviction. On March 13, 1967, this Court granted a Petition for Writ of Certiorari. On May 22, 1967, the Petitioner's Motion to Proceed in Forma Pauperis was granted. Statement of the Facts On February 4, 1965, agents of the Federal Bureau of Investigation commenced surveillance activities with respect to Petitioner. This activity continued until February 25, 1965. In fact, Petitioner's activities only during the period from February 19 through February 25 formed the basis of the indictment in the instant case. On February 19, 1965, Agent Barron of the FBI observed Petitioner entering one of three phone booths located on the 8200 block of Sunset Boulevard in Los Angeles. On this date, Petitioner appeared to be making a telephone call and remained in the booth for approximately ten minutes.

Petitioner's conversation was overheard and recorded [and later transcribed] by means of a tape recorder which was placed on top of the middle booth. One of the three booths was placed out of order by the FBI with the consent of the telephone company. The recorder microphone was taped onto the booth and no part of the microphone physically penetrated the telephone booths. The microphone was activated when Petitioner was a block away from the booth. The microphone was deactivated after Petitioner left the booth. Apparently, anybody could use the booth while the recording equipment was operative; in fact, on February 23, 1965, a stranger did use the booth and his conversation was recorded.

The admission into evidence of any of the conversations [recordings and transcripts] obtained by means of the tape recorder was objected to; however, all of the transcripts made from the tape recordings were admitted into evidence.

On February 20, 1965, through February 25, 1965, inclusive, Petitioner was observed using the same phone booths and the agents of the FBI followed the same procedure of recording and transcribing his telephone conversations, although no tape recording was obtained on February 22, 1965, due to mechanical difficulties. Petitioner was arrested immediately after leaving the telephone booth on February 25, 1965.

A representative of the telephone company [the custodian of the records] testified that calls were placed on some of the dates in question to Boston, Massachusetts.

FBI Agent La Rue was present when Petitioner was arrested. Petitioner's apartment was searched pursuant to a warrant. Petitioner's objections that the evidence which was seized pursuant to the warrant was procured by means of an illegal taping of Petitioner's telephone calls and that the warrant under which the items were seized was too general and the search was exploratory, were overruled. Agent La Rue testified that Petitioner told him that he had done nothing else other than handicap for the past 30 years. Petitioner did not, however, say he had been betting for 30 years; in fact, Petitioner may have only said that he had been a handicapper for that length of time, and the word “handicap” appeared in the Agent's report.

ARGUMENT

I. Introduction

When the Petition for Writ of Certiorari was filed herein, counsel for Petitioner intended and hoped that this case would provide the vehicle for a re-‐examination by this Court of the dichotomy that had been permitted to develop in the area of the Fourth Amendment's proscription against unreasonable searches and seizures. This dichotomy had been caused primarily by two decisions of this Court-‐Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322, and Silverman v. United States, 365 U.S. 505, 81 S. Ct. 679, 5 L. Ed.2d 734, and cases interpreting these two decisions.

It was also the intention of counsel, if the Writ were granted, to bring before this Court the whole subject of eavesdropping, particularly eavesdropping accomplished by the use of electronic and mechanical apparatus. In this regard, counsel intended to examine the historical background of eavesdropping, the judicial decisions relating thereto, the effect of recent technological advancements and whether, in fact, electronic eavesdropping is an indispensable tool of law enforcement officers.

In Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed.2d 1040, this Court, in striking down the New York permissive eavesdropping statute, greatly simplified the task of counsel herein by discussing in some detail the entire topic of electronic eavesdropping and particularly the subject matters set forth in the preceding paragraph hereof. No useful purpose would be served in reiterating this discussion. Accordingly, the portion of this brief relating to the subject of electronic eavesdropping will be directed solely to the Goldman-‐Silverman dichotomy and the ramifications thereof. II. Whether Evidence Obtained by Attaching an Electronic Listening and Recording Device to the Top of a Public Telephone Booth Used and Occupied by the Petitioner Is Obtained in Violation of the Fourth Amendment to the United States Constitution.

A. Whether A Public Telephone Booth Is A Constitutionally Protected Area So That Evidence Obtained By Attaching An Electronic Listening Recording Device To The Top Of Such A Booth Is Obtained In Violation Of The Right To Privacy Of The User Of The Booth. B. Whether Physical Penetration Of A Constitutionally Protected Area Is Necessary Before A Search And Seizure Can Be Said To Be Violative Of The Fourth Amendment To The United States Constitution.

In Goldman, supra, the Federal law enforcement officers placed a detectaphone against the wall of a room which the defendant was occupying. This Court held that the conversations that were intercepted by use of this device were admissible and that no Fourth Amendment violation had occurred. The basis of the Court's decision was that the action by the agents did not constitute a physical trespass into the area occupied by the defendant. A strong dissent was filed by Mr. Justice Murphy wherein he stressed the fact that the primary inquiry under the Fourth Amendment should be whether an individual's right to privacy had been invaded, not whether a physical trespass had occurred. On Lee v. United States, 343 U.S. 747, 72 S. Ct. 967, 96 L. Ed. 1270, followed Goldman and is really significant only for the reason that Mr. Justice Douglas, in his dissenting opinion, admitted that he had erred in voting with the majority in Goldman. (343 U.S. 747, 762.) In Silverman v. United States, supra, the Court unanimously held that evidence procured by penetrating a spike mike through the wall of petitioner's home so that it touched the heating ducts therein was inadmissible. In Silverman, this Court chose not to re-‐examine Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944, or Goldman v. United States, supra, deciding rather to base its decision on the fact that there had been “an actual intrusion into a constitutionally protected area.” (365 U.S. 505, 512.) The following significant language also appeared in Silverman:

“Here, by contrast, the officers overheard the petitioners' conversations only by usurping part of the petitioners' house or office-‐-‐a heating system which was an integral part of the premises occupied by the petitioners, a usurpation that was effected without their knowledge and without their consent. In these circumstances we need not pause to consider whether or not there was a technical trespass under the local property law relating to party walls. Inherent Fourth Amendment rights are not inevitably measurable

in terms of ancient niceties of tort or real property law.” (Citations omitted.) (365 U.S. 505, 511.) (Emphasis added.)

After Silverman, much confusion existed as to whether this Court had abandoned the physical trespass test enunciated in Goldman or whether Silverman represented the new philosophy of the Court. The confusion was to some extent caused by the statement in Silverman that “We find no occasion to re-‐examine Goldman here, but we decline to go beyond it, by even a fraction of an inch.” (365 U.S. 505, 512.) The confusion was deepened by the subsequent decision in Lopez v. United States, 373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed.2d 462, wherein the Court was unwilling to reconcile the apparent conflict between Goldman and Silverman. In one breath the Court spoke in terms of “privacy” (373 U.S. at p. 438), while in the next breath it talked about an “unlawful physical invasion” (373 U.S. at p. 439). The only language to be found in Lopez which even resembles an attempt at reconciliation is the following: “It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area.” (373 U.S. 427, 438-‐439.) That the lower courts continue to be preoccupied with the physical trespass test can be discerned by reading such cases as Cullins v. Wainwright, 328 Fed. 2d 481 (5th Cir. 1964). In this case, the law enforcement officers lowered a microphone down an airshaft which was entirely surrounded by the interior wall of the apartment in which the defendant resided. The microphone was wired to a recording and listening device operated by the officers. The information intercepted was used in an affidavit in support of a search warrant and a subsequent search and seizure was made of gambling paraphernalia. The Court held that an illegal search and seizure had occurred, since the facts of the case were more closely analogous to Silverman than Goldman. In a sense, the foregoing brief dissertation concerning the judicial development of the law of search and seizure in the eavesdropping area is of academic importance only. Whatever doubts that may have once existed, it is now clear that the recent decisions of this Court unequivocally indicate that the primary concern of the Fourth Amendment is the protection of the individual's right to privacy. This was clearly expressed in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed.2d 782, and reaffirmed in Berger v. New York, supra, and Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed.2d 930. In Warden, this Court stated:

“... We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts. See Jones v. United States, 362 U.S. 257, 266; Silverman v. United States, 365 U.S. 505, 511. This shift in emphasis from property to privacy has come about through a subtle interplay of substantive and procedural reform ....” (18 L. Ed.2d 782, 790.) (Emphasis added.)

See also Griswold v. Connecticut, 381 U.S. 79, 85 S. Ct. 1678, 14 L. Ed.2d 510. Assuming the undeniable premise that the primary concern of the Fourth Amendment is the individual's right to privacy, it can at once be seen that the inquiry as to whether or not a physical trespass has occurred is no longer relevant in discussing a search and seizure issue and, to the extent that Goldman v. United States, supra, stands for such a proposition, it must be overruled.

If there has been an actual invasion or an attempt to intrude into a constitutionally protected area, a person's right to privacy has been violated and the fact that there was or was not physical penetration of that area is irrelevant. The crucial inquiry as applied to the instant case is, therefore, whether a public telephone booth is a constitutionally protected area so that an interception of Petitioner's calls while an occupant thereof constituted an invasion of his constitutionally protected right to privacy.

Before discussing this question, it must first be observed that there can be no real doubt that Petitioner herein has the requisite standing to attack the alleged constitutional infringement, since he has been “indisputably affected by it.” Berger v. New York, 18 L. Ed.2d 1040, 1050; see also Jones v. United States, supra.

This Court has apparently never had the occasion to pass on the issue of whether a public telephone booth is a constitutionally protected area. Nor has this Court delineated with specificity the test for determining whether a particular area is constitutionally protected. Perhaps Lanza v. United States, 370 U.S. 139, 82 S. Ct. 1218, 8 L. Ed.2d 384, represents the closest that this Court has come to discussing this subject. In Lanza, wherein it was held that a public jail was not a constitutionally protected area, the Court stated:

“Yet, without attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or hotel room.” (370 U.S. 139, 143.) (Emphasis added.)

When the now discredited physical trespass theory is abandoned in favor of one stressing the right to privacy, it is possible to suggest a workable test to be employed in determining whether or not a specific area is protected by the Fourth Amendment. This test merely turns on the answer to the question: “Does the area in question have the ‘attributes of privacy?’ ” (Lanza v. New York, supra) or, said in another way, “Would the average reasonable man believe that the person whose conversation had been intercepted intended and desired his conversation to be private?” Under this test the degree of privacy afforded by a facility would be one criterion in determining the degree of privacy protected. For example, a conversation held in a telephone booth having a door would be entitled to more privacy, and thus more constitutional protection, than a conversation held in an open booth in a crowded building or area.

When examined in light of this proposed test, there is little room for doubt that a public telephone booth with a door [as in the instant case] is and should be a constitutionally protected area. In using the booth, a person, in return for paying a set toll, expects and intends his conversation to be unmonitored and private and further expects to be in complete control of the degree of privacy his conversation will have. Since the protection of the Fourth Amendment has been held by this Court to include a business office (Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647), a store (Davis v. United States, 328 U.S. 582, 66 S. Ct. 1256, 90 L. Ed. 1453), a hotel room (United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 59), an automobile (Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed.2d 134), and an occupied taxicab (Rios v. United States, 364 U.S. 253, 80 S. Ct. 1431, 4 L. Ed.2d 1688), it would be unreasonable to suggest that any less protection should be afforded to the user of a closed door public telephone booth. Surely he has the same right to exclusive control and use as does the taxicab occupant.

Several lower courts have had the occasion to pass on the issue herein presented. In United States v. Borgese, 235 Fed. Supp. 286 (S.D.N.Y. 1964) the court held that a public telephone booth was not a constitutionally protected area. However, in United States v. Stone, 232 Fed. Supp. 396 (N.D. Tex. 1964) and United States v. Madison, 32 U.S.L. Week 2243 (D.C. Ct. Gen. Sess. 1963) a contrary, and it is submitted correct, decision was reached. Because of the excellent manner in which the Court in Stone analyzed the matter, this Court's indulgence is desired in setting forth in some detail a portion of that decision:

“Going back to the founding of this country it is clear that individual privacy was one of the strongest single influences that guided the founders of this country in the establishment of a new nation and the adoption of the Bill of Rights.

“Privacy of a protected area was invaded only by an actual physical intrusion. But today electronic devices without physical presence enables an intrusion upon the air, light and sound waves of a person's property as real as any physical trespass.

“But fundamental rights protected by the Bill of Rights cannot become outdated by technological developments. Sustaining this position the Supreme Court stated in Village of Euclid v. Ambler Realty Company, 272 U.S. 365, at page 387, 47 S. Ct. 114, at page 118, 71 L. Ed. 303 (1926): “‘while the meaning of the constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise.’

“In the light of technological improvements it is clear that an electronic device placed in a protected area by government agents without the knowledge of the defendant and transmitting a telephone conversation of defendant is as much a physical trespass and violation of the right to privacy as is the making of an unlawful physical entry, and overhearing the conversation under such circumstances is a violation of the Fourth Amendment.

“With respect to whether the admission of evidence secured through an electronic device also violates the Fifth Amendment, Judge Washington in a dissenting opinion in Silverman, 275 F.2d 179 reasoned that: “eavesdropping of the kind which occurred here * * * does violate * * * our fundamental concept of ordered liberty, as embodied in the due process clauses of the Fifth and Fourteenth Amendments.’ [Silverman v. United States, 107 U.S. App. D.C. 144, 275 F.2d 173.]

“In the recent case of Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed.2d 653, Justice Brennan approved the following statements in Boyd v. United States, supra, that “‘Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony * * * to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of [the Fourth and Fifth Amendments].’ and in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed.2d 1081, 84 A.L.R.2d 933 that “‘We find that as to the Federal Government the Fourth and Fifth Amendments * * * do enjoy an ‘intimate relation’ in their perpetuation of ‘principles of humanity and civil liberty [secured] * * * only after

years of struggle’. Bram v. United States, 1897, 168 U.S. 532, 543-‐544 [18 S. Ct. 183, 187, 42 L. Ed. 568].

“It is clear that the use of defendant's conversation in a criminal case under the circumstances in this case is within the condemnation of the Fifth as well as the Fourth Amendment ....” (232 Fed. Supp. 396, 399-‐400.)

In Berger v. New York, supra, this Court elaborated upon certain factors which might turn an otherwise valid search into an illegal one. Two of these factors were the imprecise and indiscriminate monitoring of conversations and prolonged or a series of monitorings. Both of these factors were present in the instant case. Not only was the surveillance of the Petitioner conducted over a period of three weeks [although activities during only a one week period formed the basis of the indictment], but a conversation, and therefore the privacy, of a complete stranger was intercepted. Thus, even assuming arguendo [although vehemently denying] that a public telephone booth is not a constitutionally protected area, the search in this case was unreasonable under the Fourth Amendment in any event, since not even the protections of the statute in Berger, supra, were present in this case. III. Whether the Search Warrant Used by the Federal Officers in the Instant Case Violated the Fourth Amendment to the United States Constitution in That Said Warrant Was (a) Not Founded on Probable Cause; (b) an Evidentiary Search Warrant; and (c) a General Search Warrant. Before examining in some detail the nature of the search warrant involved in the instant case, one very significant point must be mentioned. The affidavit for search warrant involved herein specifically states:

“On February 19, 20, 21, 23 and 24, 1965, Charles Katz was observed by me and fellow Special Agents to enter either one of two public phone booths located at 8210 Sunset Boulevard, Hollywood, California, which have phone numbers OL 4-‐9275 and OL 4-‐9276. “From these booths Charles Katz made daily station to station telephone calls to Boston, Massachusetts, telephone number 884-‐1733. His conversations were recorded by taping microphones on the outside of the phone booths daily. I have listened to the recordings of his conversations and in his conversations he daily received the basketball line and made wagers with the person using the telephone number he was calling. “On February 23 and 24, 1965, Charles Katz from the described booths called Miami Beach telephone number JE 4-‐0976 and on February 24, 1965, he made sports bets on the Duquesne and Temple basketball games to a party on the Miami number. He used the following language, ‘Give me Temple 101/2 for a nickel and give me Duquesne 71/2 for a nickeL’ “From my experience in investigating violations of the Federal Gambling Statutes I am aware that the above language construed the placing of bets.”

It must be conceded by Respondent that a substantial portion of the information recited in the agent's affidavit in support of the search warrant was obtained by him through the use of an electronic eavesdropping device. It is patently clear that if, as is contended by Petitioner, the information was obtained in violation of the Fourth Amendment, such information could not be utilized to establish “probable cause” for the search warrant. This necessarily follows since the warrant would be the “fruits

of the poisonous tree.” Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319. Assuming that the information was obtained in violation of the Fourth Amendment and if the affidavit was not sufficient for “probable cause” absent such information, the warrant must be declared invalid and all evidence seized thereby must be held inadmissible. Assuming arguendo that the affidavit was sufficient for “probable cause,” it remains to be seen whether the warrant itself was valid. The warrant authorized a search for the following: “... bookmaking records, wagering paraphernalia, including but not limited to, bet slips, betting markers, run-‐down sheets, schedule sheets indicating the lines, adding machines, money, telephones, telephone address listings, ....” It is respectfully submitted that the foregoing language of the warrant authorized a search for evidence in violation of Rule 41, Fed. Rules Crim. Proc. It may be contended that a contrary conclusion is dictated by this Court's recent decision in Warden, Maryland Penitentiary v. Hayden, supra, wherein it was held that the fact that “mere evidence” was seized by the authorities during an otherwise valid arrest and search did not make the evidence seized inadmissible. If, in fact, Warden does dictate this conclusion, a further discussion of the subject would seem unnecessary. It is because Petitioner contends that the decision in Warden did not foreclose the issue here under discussion that further inquiry into the question will be made. Counsel for Petitioner have had the occasion to discuss between themselves and their colleagues the meaning and applicability of Warden, both as to the law of search and seizure in general and to the facts of this case in particular. Some of these colleagues have adopted the position that the Warden decision means that evidentiary items may now be seized under a search warrant as long as these items are specifically listed in the warrant. If, in fact, this is the true meaning of Warden, counsel for Petitioner herein respectfully submit that the decision is irreconcilable with Rule 41, Fed. Rules Crim. Proc. Although the Fourth Amendment would seem to sanction an evidentiary search if the items to be seized are particularly described (Warden v. Hayden, supra), Rule 41 contains no such permission or authority. Thus, by enacting Rule 41 Congress obviously intended to and did make the scope of a search pursuant to a search warrant more restrictive than that permitted by the Constitution, at least insofar as the Federal Courts are concerned. It might be remembered that similar action was taken by Congress after this Court's decision in Olmstead v. United States, supra. Although Olmstead held wiretap evidence admissible under the Fourth Amendment, Congress enacted Title 47 U.S.C. §605 which made wiretapping an illegal activity. Subsequently, this Court in the Nardone Cases, 302 U.S. 379, 58 S. Ct. 275, 82 L. Ed. 314, and 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307, held that wiretap evidence was inadmissible in Federal prosecutions. Irrespective of the validity of the foregoing analysis, it is respectfully submitted that Warden is distinguishable from the instant case. First, Warden involved a warrantless search [whereas a search warrant is involved herein] and therefore, the provisions of Rule 41 did not apply. Second, Warden involved a situation where the search was made while the officers were in “hot pursuit” of a suspected criminal. If the holding in Warden is held applicable to the instant case, this Court will be required to declare that the expression of Congress in Rule 41 is too narrow a construction of Fourth Amendment rights and that Rule 41 is somehow invalid. Further, this Court will be required to

overrule all prior cases holding that a general or evidentiary search warrant is invalid. It is respectfully submitted that the Court should do neither.

Additionally, to apply the rationale of Warden to this case would be to totally and completely disregard that portion of the Fourth Amendment which provides: “ ... And no warrants shall issue but upon reasonable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” (Emphasis added.)

Fed. Rules Crim. Proc., Rule 41 provides in its pertinent parts as follows:

“(b) Grounds for Issuance. A warrant may be issued under this rule to search for and seize any property:

“(1) Stolen or embezzled in violation of the laws of the United States; or “(2) Designed or intended for use or which is or has been used as the means of committing a criminal offense.”

It is significant to note that nowhere does Rule 41 authorize a search for evidentiary matter. Either Warden must be held inapplicable to the warrant involved in this case or Rule 41 must fall.

Further, if Warden is held to validate the warrant involved in this case, all prior decisions of this Court striking down general and exploratory searches under the guise of a search warrant must be overruled. See, e.g., Marron v. United States, 275 U.S. 192, 48 S. Ct. 74, 72 L. Ed. 231; Stanford v. United States, 379 U.S. 476, 85 S. Ct. 506, 13 L. Ed.2d 431; Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Gouled v. United States, supra; and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed.2d 723. The following language set forth in Marron and cited in Stanford could not possibly be considered good law if Warden applies to the warrant involved herein:

“The requirement that warrants shall particularly describe the thing to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” (375 U.S. 192, 196.)

Interestingly enough, the above-‐quoted language was cited with approval in Berger v. New York, supra, at p. 1052.

If, as is contended by Petitioner, the warrant involved in this case is to be governed by the long standing rules of law that have been enunciated by this Court [see decisions cited in preceding paragraph], then the provisions of this warrant must be further examined to determine whether or not they comport with these rules of law.

There can be little doubt that the warrant involved in this case authorized a search in violation of Rule 41 and the above cited cases. None of the items specified in the warrant were contraband or instrumentalities of the crime herein involved. Additionally, the warrant contained no specifics; rather, it was directed at items which customarily are found in the possession of gamblers or bookmakers. Further, the warrant was also directed at items which are commonly in the possession of every citizen of this country [e.g., money, telephones, telephone address listings, etc.]. As such, it was a general warrant which authorized a search for non-‐specified evidence. Such a warrant violates both the Fourth and Fifth Amendments to the United States Constitution.

Even if the warrant involved in the instant case could by some stretch of the imagination be held to be sufficiently specific, it is clear that the items seized by the officers went far beyond whatever specificity is contained in the warrant. A look at the inventory of the items seized discloses that numerous items were seized which were not described in the warrant and which were not contraband [e.g., 148 yellow, legal size sheets of lined paper; 1 copy 1964 Inside Football; newspaper clippings captioned “College Basketball Standings”; registration card issued by Las Vegas Police Department, #A-‐44612; newspaper clipping starting with “The expert: ...” and ending with “games”; sheet of white, heavy paper with red handwriting; large brown envelope containing 7 copies of Sports Journal; copy of Basketball Year Book 1965]. Since the officers exceeded the authority granted to them in the warrant, it is respectfully submitted that the entire search must be invalidated, for the reason that the validly seized items cannot be severed from the invalidly seized items. The mass seizure of a person's private papers and property is offensive to the Fourth Amendment. Marcus v. Property Search Warrants, 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed.2d 1127. IV. If the Holding in Frank v. United States, 347 F.2d 846, Is Applicable to the Instant Case, Then Petitioner Is Entitled to a Reversal of His Conviction and This Proceeding Would Be Rendered Moot. After Petitioner's conviction in the instant case, and while the matter was pending on appeal in the Court of Appeals, Petitioner was subpoenaed before the Federal Grand Jury at Miami, Florida. Petitioner was granted immunity in connection with his testimony before the Grand Jury pursuant to Title 47 United States Code §409(1). Whereupon, Petitioner was questioned before the Grand Jury concerning the same subject matter which formed the basis of his conviction in the instant case. When Petitioner refused to answer any of the questions propounded to him before the Grand Jury, he was committed to the custody of the United States Marshal by Chief United States District Judge David W. Dyer until he complied with the order from the Court directing him to answer the questions propounded. This commitment, which was made on June 24, 1966, was stayed until June 27, 1966, pending application for a stay to the United States Court of Appeals for the Fifth Circuit. On June 27, 1966, Circuit Judge J. Minor Wisdom stayed the order of commitment until the regularly constituted panel of the United States Court of Appeals for the Fifth Circuit had an opportunity to consider a motion for a stay. On July 7, 1966, the regularly constituted panel of the said Court of Appeals dissolved the aforesaid temporary stay and denied the Petitioner's motion for stay of commitment. On July 8, 1966, Chief United States District Court Judge David W. Dyer entered an order directing the United States Marshal to forthwith take into custody and incarcerate Petitioner in accordance with the order previously made on June 24, 1966. On July 9, 1966, Petitioner was taken into custody by the United States Marshal and incarcerated in the Dade County Jail, Dade County, Florida. After Petitioner had served some time in jail, the particular Grand Jury before which Petitioner had been called to testify dissolved. Consequently, Petitioner was released from jail. Shillitani v. United States, 384 U.S. 364, 86 S. Ct. 1531, 16 L. Ed.2d 622. Subsequently, a new Grand Jury was formed and Petitioner was again subpoenaed to appear before it. On this occasion, the previous grant of immunity still appertaining, Petitioner answered the questions propounded to him.

After he had testified before the Grand Jury as aforesaid, and on or about September 26, 1966, Petitioner, by and through his counsel, moved the Ninth Circuit Court to remand the within matter to the District Court for the purpose of permitting Petitioner to move for a new trial on the ground of newly discovered evidence. The newly discovered evidence related to Petitioner having testified before the Grand Jury, after having been granted immunity as aforesaid. It was and is Petitioner's contention that, by so testifying after having been granted immunity, a reversal of his conviction was mandatory. A copy of Petitioner's NOTICE OF MOTION AND MOTION FOR REMAND FOR THE PURPOSE OF MOVING FOR A NEW TRIAL ON THE GROUND OF NEWLY DISCOVERED EVIDENCE; AFFIDAVIT AND POINTS AND AUTHORITIES is attached hereto as Appendix “A”. On September 30, 1966, the United States Court of Appeals for the Ninth Circuit issued its order requesting “that each side file at or before the time set for hearing the argument, i.e., October 7, 1966, such affidavits, transcripts (if any there be), (1) to establish whether or not appellant was convicted with respect to the matter about which the testimony was subsequently compelled; and (2) of any further proceedings (if any there be) by any party in Frank v. United States, 347 F.2d 486, subsequent to July 30, 1965.” A copy of this order is attached hereto as Appendix “B”. October 7, 1966, the Court of Appeals for the Ninth Circuit issued its order denying Petitioner's Motion for Remand. A copy of this order is attached hereto as Appendix “C”. Insofar as the issue raised by the preceding facts is concerned, this case is identical to the case of Frank v. United States, 347 F.2d 486, supra. In Frank, the Court, quoting from the Government's Reply Brief, set out the facts as follows:

“‘After appellant Angelone was tried, convicted and sentenced, he was called upon to testify before a Grand Jury. The Grand Jury was investigating other crimes and the crime in the instant case so far as the facts concerned other suspects. Appellant Angelone refused to testify on grounds of self-‐incrimination. He was compelled to testify under the immunity statute, 47 U.S.C. 409(L).’”

Based on the foregoing facts, the defendant Angelone contended that his conviction had been mooted and was required to be set aside. The Circuit Court so held. It is respectfully submitted that the same holding is required in the instant case wherein the facts which gave rise to the application of the Frank doctrine are undisputed and identical to those in Frank. The statute under which Petitioner herein was granted immunity (48 Stat. 1097 (1934), 47 U.S.C. §409(L) (1958)) provides in its pertinent parts as follows:

“No individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-‐incrimination, to testify or produce evidence, documentary or otherwise, except that any individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.”

Applying this statute to the facts before it, the Court in Frank stated:

“[5] Under this language Angelone may not be ‘subjected’ to any penalty * * * for or on account of any transaction, or thing concerning which he is compelled, after having claimed his privilege against self-‐incrimination, to testify * * *. Therefore he may not be

penalized in the present case since, as we are now advised, his compelled testimony concerned matters related to his conviction which is here on appeal. The United States points out, however, that the conviction had already occurred, and that the immunity statute does not apply to any penalty that may result from his appealed conviction because such penalty cannot be attributable to his testimony as given before the grand jury. We think this is too narrow a construction of the immunity statute and is inconsistent with the ‘Policies of the Privilege’ as most recently described by the Supreme Court. Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed.2d 678. “[6] While we are not bound to construe literally the language of immunity if to do so would run counter to the intent or purpose of Congress, we have no reason to decide that that intent or purpose was other than to permit an exchange of a particular conviction, such as Angelone's, for the larger benefit believed to reside in compelling his self-‐accusatory testimony. Congress has not sought to enable the government to obtain both such compelled testimony and a conviction related thereto which is either not yet obtained or if obtained is pending on appeal. Congress left the choice to the executive officials administering the criminal law, subject to District Court approval. Compelling one to give testimony which, except for the grant of immunity, is self-‐incriminating sacrifices the power to penalize the person granted the immunity if he has been convicted with respect to the matters about which the testimony is compelled and his appeal from the conviction is pending when such testimony is given. It probably will not be questioned that should such a conviction be reversed the intervening immunity would preclude a subsequent re-‐trial. But if the conviction is affirmed, the appellant is ‘subjected to * * * penalty’ not only by the previous conviction but by the subsequent affirmance. “To repeat, the government may not convict a person and then, pending his appeal, compel him to give self-‐accusatory testimony relating to the matters involved in the conviction. Any other construction of the statute would lead to such potential abuse as to preclude such construction if it may reasonably be avoided consistently with the Congressional purpose. Our construction and application of the statute we think coincides with that purpose. Piemonte v. United States, 367 U.S. 556, 81 S. Ct. 1720, 6 L. Ed.2d 1028, is not to the contrary. No appeal from the conviction was there pending. Moreover, the case involved contempt of court for refusing to obey the court's order. No question as to the possible mooting of the previous conviction was presented or decided.” (347 F.2d 486, 490-‐91.)

If the rationale in Frank is correct, then a reversal of Petitioner's conviction is required. A contrary result would in effect permit the law enforcement officers to reap the benefits of the immunity statute [i.e., Petitioner's testimony] without suffering the corresponding detriment [i.e., the inability to use the testimony against the Petitioner]. If, contrary to the suggestion by the Court in Frank, Petitioner's Grand Jury testimony could be used against him on a re-‐trial of the instant conviction, the immunity statute would indeed be rendered meaningless and Petitioner would certainly suffer a “penalty” by being deprived of his Fifth Amendment rights. Petitioner seriously doubts that the Government would ever adopt such a position. It would be anomalous to hold that any less a “penalty” is imposed upon a person granted immunity if his conviction

is affirmed on appeal. The obvious intent and purpose of the immunity statute is to afford to the defendant a quid pro quo for relinquishing his Fifth Amendment rights. The defendant would be deprived of his quid pro quo if he is forced to waive this right without deriving any benefit therefrom.

Further, if Frank is not upheld, the Government would be given a very unfair advantage for the following reason. Not only will the Government have its conviction affirmed on appeal, but the Government will also be able to derive the benefit of the defendant's testimony before the Grand Jury [immunity having been given while the case was on appeal], which testimony would not have been available in the trial court unless the Government gave the defendant immunity, thereby forsaking prosecution of him. In effect, if Frank is overturned, the Government will, proverbially speaking, “have its cake and eat it too.”

Conclusion

It is respectfully submitted that the holding of the Court in Frank v. United States requires an automatic reversal of Petitioner's conviction herein. Nevertheless, because of the extreme importance of the Fourth Amendment issues presented by this case, Petitioner herein respectfully prays the Court to make a determination on these issues.

[Footnotes omitted by symposium editors.]

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