Technically Legal

Attorney, blogger and law professor, Eric Goldman, posted an excellent writeup today on several recent cases concerning the 4th Amendment “right to privacy” in state supreme court cases.

While some laws have been easily applied our new technology-laden world, others either provide complications or simply have not yet been applied–making the legal significance of a piece technology unknown.  In his post, Goldman points out several recent decisions concerning the application (or potential application) of 4th Amendment privacy rights to technology in both civil and criminal litigation, including:  cell phone and text message privacy; expectations of privacy in documents or data held by a third party; and GPS tracking devices and a right to privacy.  Read his post for the full recap.

You might not think the particularities of search and seizure law matter much to you (I don’t commit crimes anyways! Why should I care what the police can search?!).  However, you may find the fundamental concepts which support these laws today might influence future policies that affects our electronic data and online activity privacy rights–especially when it comes to how online service providers can handle our private information, whether it’s demographics, physical mailing address, phone numbers, e-mail, social security numbers, and the list goes on.   It’s very much a subject worth following as it develops.

Basic Background of the 4th Amendment “Right to Privacy”

If you are not already a lawyer, law student, or US constitutional aficionado, you probably recall the 4th Amendment from your high school (or college) civics classes.  Embodied as part of the Bill of Rights, the 4thAmendment affords a right to the “people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures.”  Additionally, the text provides a method for authorities to conduct what would be otherwise “unreasonable searches and seizures” if they obtain a warrant, “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. “   Side note: the 4th Amendment applies to the States through the 14th Amendment, hence why we see _state_ courts grappling with the application of the U.S. Constitution to local matters.  (See Mapp v. Ohio, 367 U.S. 643 (1960)).

You’ll notice there is no mention of the word “privacy” within this Amendment, but we’ve all come to know this section of the Constitution to afford a general right to privacy.  In fact, the modern notion of a “right to privacy” was articulated  into both criminal and civil law through judicial decisions interpreting the meaning of the textual language of the 4th Amendment.

The 4th Amendment is commonly invoked in criminal matters.  Even if you’re not especially familiar with criminal law, you probably know that a police office can’t just walk into your home and seize a piece of evidence.  Absent certain exigent circumstances, an officer would need to have a warrant to conduct such a search for contraband or evidence.  Similarly, if you are stopped on the street by an officer, absent probable cause, if that you have not committed a crime witnessed by the officer, you cannot be arrested nor have your purse or backpack searched without a warrant.  Note here that the concept of “seizure” also extends to a person– if you are arrested, you are effectively seized–in addition to search of belongings.   In the law, this prohibition on search and seizure was articulated into a test which is still applied today in Katz v. United States, 389 U.S. 347 (1967).  The right extends to tangible and intangible property where a person has an ” reasonable expectation of privacy”– the expectation must be one that is generally accepted by society, not subjectively by an individual.  E.g.,  just because I consider the open trunk area of my SUV which is visible to to the public to be a private area, doesn’t automatically deem it so.

The effect of the 4th Amendment is profound in criminal proceedings.  Importantly, a rule known as the “exclusionary rule” prohibits the introduction of unconstitutionally obtained evidence into the record on trial (a jury should never see it).  Thus if that “expectation of privacy” was violated when an officer searched an individual, in most circumstances it will not be permitted into evidence at trial.  Of course, like with almost everything in the law, there are a number of exceptions and the law is incredibly nuanced.

Beyond criminal proceedings, the notion of an “right to privacy”  is a subject in civil law too.  A number of torts recognized in the U.S. legal system which have evolved from the “expectation of privacy” concept.  In other words, should a person find themselves the victim of a civil privacy injury,  they can sue another person (or legal entity) for damages and sometimes equitable relief (e.g., an injunction).   The most universally recognized throughout the 50 states are:  “intrusion on solitude” (e.g., physical intrusions on private areas); “false light” (e.g., wrongly portraying someone in a news report on purpose, or defaming someone); “public disclosure of private facts” (e.g., publishing or disseminating certain private facts about a person); and, “misappropriate on likeness” (e.g., using a person’s picture in a commercial advertisement without permission).   A number of other laws governing privacy rights have also been legislated, including the handling of electronic data (see Electronic Communications Privacy Act and the Stored Communications Act) and certain protections on sensitive health care information (HIPAA).

Both from the Constitutional and civil standpoints, these laws regulate the everyday privacy we enjoy and sometimes take for granted.  As societal norms evolve, it’s important to ensure the law properly reflects what we think of as privacy.

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