Reasonable expectation of privacy

The chaos prompts an obvious question: why can’t the Supreme Court settle on a single test for what makes
an expectation of privacy “reasonable”? Many areas of law require courts to apply vague standards, such as
whether a company was “negligent” or a defendant’s awareness of risk deviated from the standard of a reasonable
person. But the confusion over the reasonable expectation of privacy test is much deeper. Supreme Court opinions
cannot even agree on what kind of test it is. Is it descriptive? Is it normative? Just what does it measure? The cases
are all over the map, and the Justices have declined to resolve the confusion. This Article explains why the Supreme
Court has not and cannot adopt a single test for what makes an expectation of privacy “reasonable.” Because finding
an expectation of privacy “reasonable” usually subjects the government’s conduct to the warrant requirement, the
doctrine needs to distinguish less troublesome police practices permitted without a warrant from more troublesome
practices allowed only with a warrant or under special circumstances such as exigent circumstances or consent. The
Supreme Court has not and cannot adopt a single test for when an expectation is “reasonable” because no one
test effectively and consistently distinguishes the more troublesome police practices that require Fourth
Amendment scrutiny from the less troublesome practices that do not.

The failure of any one test to consistently distinguish police practices needing Fourth Amendment
regulation from those that do not has led to the mixed system that exists today. Although the courts speak of a single
“reasonable expectation of privacy” test, the one label masks several distinct but coexisting approaches. Four
approaches predominate, together reflecting four different models of Fourth Amendment protection. The first three
rely on proxies. The probabilistic model considers the likelihood that the subject’s information would become
known to others or the police. The lower the likelihood, the more likely it is that a reasonable expectation of privacy
exists. The private facts model asks whether the government’s conduct reveals particularly private and personal
information deserving of protection. This approach focuses on the information the government collects rather than
how it is collected. The positive law model considers whether the government conduct interferes with property
rights or other legal standards outside the Fourth Amendment. When courts apply the positive law model, an
expectation of privacy becomes reasonable when it is backed by positive law such as trespass. The fourth and final
model, the policy model, reflects the direct approach. Courts applying the policy model focus directly on whether
the police practice should be regulated by the Fourth Amendment.

I. THE FOUR MODELS

The reasonable expectation of privacy test distinguishes investigative steps that the Fourth Amendment
regulates from investigative steps that it does not regulate. If government conduct violates a reasonable
expectation of privacy, then that conduct is a “search” and is legal only if justified by a search warrant
508 STANFORD LAW REVIEW [Vol. 60:503 or a specific exception to the warrant requirement such
as consent or exigent circumstances.15 On the other hand, if government action does not implicate a
reasonable expectation of privacy, then the Fourth Amendment does not regulate it and investigators
can take that step at any time without constitutional limitation.16 As a result, the reasonable
expectation of privacy test defines the line between unregulated investigative steps that can be used at
any time from special investigative steps that must be used only sparingly and in specific
circumstances.

What makes an expectation of privacy constitutionally “reasonable”? **

Subsequent cases have indicated that what is already in the public domain can be recorded and
disseminated since it would amount to no more than exposing what could already be seen. For example, in
California v Greenwood ((1988) 486 U.S. 35), the Supreme Court ruled that citizens could have no reasonable
expectation of privacy in items they discarded in the dustbin for the express purpose of having strangers take it
away.
 Despite this US interpretation, it could be argued that we all carry out acts in public that we would consider
to be of a ‘private’ nature, where subjectively, we might have exhibited an expectation of privacy. Furthermore,
though we may have exposed certain actions to public gaze, this does not necessarily mean that we would be happy
for many different actions, in different locations, to be recorded and collated into a permanent record of behaviour
over a particular period. In open, publicly accessible spaces “ordinary people expect to remain anonymous. …
scrutiny of more than a casual character would seem to offend reasonable expectations of being able to remain
anonymous” (Von Hirsch, 2000: 61). Norris and Armstrong have argued that although the law does not recognise a
right to privacy in public “it is clear that rules governing the production and reproduction of order in public space
are finely attuned to its microsociological dimensions.” (Norris and Armstrong, 1998: 4). In co-presence the watcher
and the watched can read signals from each other, such as a threatening look, and can challenge or question each
other accordingly. CCTV surveillance modifies this relationship. The watcher and the watched are ‘distanciated’.
The potential subject of surveillance does not know the extent to which he is being watched, if at all, but may
modify his behaviour nevertheless. Whilst no one would anticipate a casual look to be a threat to privacy, how might
prolonged visual surveillance fare?

Feldman’s analysis of the right to privacy is instructive here (Feldman, 1994). He asserts that every
individual will be part of a multitude of different interlocking spheres within society, such as through their
workplace, membership of social clubs, family and so on. Each sphere represents an area marked off from those
outside it, whilst inside, individuals have relatively little privacy against others in that sphere for the purposes of that
sphere. For example, whilst those in the family home may enjoy a significant degree of privacy from the outside
world, they enjoy considerably less privacy as regards each other for the purposes of living in the communal
environment. An appeal to privacy thus assumes a conflict of interests, differing according to the circumstances.
Such an analysis offers an alternative to the idea that what occurs in public cannot, as a matter of fact, be private.
Privacy in each sphere operates in four dimensions: space, time, action and information (ibid. 52). In relation to the
use of public space CCTV one cannot control the spatial element of who can watch, or set time limits on when
people can watch, but arguably there can be an active element and an information element. For example, though
limited, one could have a claim not to be the subject of intensive surveillance without due cause, and a stronger
claim to control the diffusion of information about what has occurred there. Though the expectation of privacy
may be considerably reduced in a public setting, this does not automatically mean that all privacy is lost. The
operation of public space CCTV might be justified on crime control grounds, but that incursion into privacy does not
therefore mean that the CCTV operator can intensively focus on individuals without good cause or do as he or she
wishes with the recorded images:

If the surveillance is overt, it carries with it a clearly implied threat that the fruits of the surveillance may be
used for purposes adverse to the interests of the person being watched. This is calculated to undermine people’s
commitments to their own plans and values. It thus represents a failure of respect for people’s dignity and autonomy
(ibid.: 61).
Expectation of Privacy

The expectation of privacy test, originated from Katz v. United States is a key component of Fourth
Amendment analysis. The Fourth Amendment protects people from warrantless searches of places or seizures of
persons or objects, in which they have an subjective expectation of privacy that is deemed reasonable in public
norms. The reasonableness standard is construed upon the totality of circumstances on a case-by-case basis. The
person’s precautions taken to exclude others’ access are strong indicators to the expectation of privacy and might be
taken into consideration by the court.

The legitimate expectation of privacy must have a independent source outside Fourth Amendment. For example,
private homes are at the core of Fourth Amendment protection subject to a few exceptions, as they are closely
associated with the ownership interest in property law.

On the other hand, a warrantless seizure of abandoned property usually does not violate the Fourth Amendment.
Temporary residents on public property without permit and in violation of law do not have legitimate expectation of
privacy either. Moreover, the Fourth Amendment protection does not expand to governmental intrusion and
information collection conducted upon open fields. Expectation of privacy in an open field is not
considered reasonable. There are some exceptions under state laws that grant protection to open fields.

Katz V. United States: The Background

The case of Katz v. United States began in 1967, when Charles Katz used a public telephone in Los Angeles,
California to phone-in illegal gambling bets. Katz used the public phone to place bets with bookies in Miami and
Boston. While placing these illegal bets over the phone, Mr. Katz was unaware that the United States Federal
Government—through the FBI—was listening. The Federal Bureau of Investigations (FBI) was able to listen to
Katz place illegal bets because the agency tapped that specific phone.
Following the recorded conversations, Katz was arrested and immediately taken into custody by the FBI. In
response to the arrest, Charles Katz said the police had violated his rights as an American citizen; he claimed the
FBI and the Los Angeles Police Department disrupted his right privacy.
The right to privacy is a Constitutional liberty granted to all American citizens. The right to privacy requires all
government authorities to protect the privacy of individual American citizens. Because of these rights, the case of
Katz v. United States is regarded as groundbreaking and unique.
Katz V. United States: The Case Profile
The Katz V. United States trial took place on October 17th of 1967. In response to his arrest, Katz appealed the
charges and claimed that the FBI lacked sufficient evidence and probable cause to record his telephone
conversations. To legally record phone conversations—to do so without invading a citizen’s privacy—the FBI or
any police department must have probable cause. In other words, the government must have solid evidence that you
are a criminal or are engaging in illegal activity. Without this evidence, without probable cause, the government
cannot invade your privacy.
The Katz v. United States trial was decided on December 18th of 1967. The case was heard in the Supreme Court of
the United States.
Katz V. United States: The Verdict
In Katz v. United States, the United States Supreme Court ruled in favor of Katz, stating that the Police Department
and the FBI violated his right to privacy. This right is expressed in the 4th Amendment to the United States
Constitution.
The United States Supreme Court stated that use of a public phone is private in nature. When an individual is
making a call, no government agency is allowed to listen to the call unless they have secured probable cause or
evidence that points to illegal activity.
The 4th Amendment to the United States Constitution does not allow any agency to engage in unlawful searches and
seizures of American citizens. This amendment also defines what the right of privacy is and what is required to
break an American citizen’s right to privacy.
Reasonable Expectation of Privacy
Privacy is defined as "the expectation that confidential personal information disclosed in a private place
will not be disclosed to third parties, when that disclosure would cause either embarrassment or emotional
distress to a person of reasonable sensitivities".
Reasonable expectation of privacy is an issue dealing with the Fourth Amendment of the United States
Constitution. In the constitution the Fourth Amendment known as "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." To learn more
about the Fourth Amendment click here. Expectation of privacy is defined as the belief in the existence
of freedom from unwanted governmental intrusion of personal property, house, or persons. Expectation
of privacy is similar but not the same thing as right of privacy.

There are two different types of reasonable expectation of privacy, subjective expectation of privacy and
objective, legitimate or reasonable expectation of privacy. Subjective expectation of privacy is the
opinion of someone that a certain event or occurrence is private whereas objective, legitimate, or
reasonable expectation of privacy is a generalized idea of privacy known by society. A person may not
have an expectation of privacy in public places except a ones residence, hotel room, in a place of
business, public restroom, private portions of a jailhouse, and or a phone booth. A personal vehicle is
known as a subjective expectation of privacy, but does not always fall under the category of objective
expectation of privacy, like a house.
The expectation of privacy plays a crucial part when deciding if a search and seizure is a correct or
incorrect. In order to follow the Fourth Amendment, the US congress has come up with a two part test to
help make a decision if a search and seizure is appropriate. The two circumstances of the test are; (1)
governmental action must take into consideration the individual's subjective expectation of privacy and
(2) the expectation of privacy must be reasonable, in that society agrees and recognizes it.
Since the Fourth Amendment was written way before any kind of technology with memory capabilities,
the law has adapted and caught up with the times. Surveillance equipment has recently diminished the
expectation of privacy. With today's technology, we can watch and predict criminals’ next moves. Also,
we can find out information about a person and look up background and history information.
Computer and internet users are constantly logging their history onto their hard drives. Government
forces can retrieve this information and use it in a trial if needed. E-mails, e-mail addresses, IP addresses,
and websites are all recorded and could be searched. Today, the Federal courts agree that the sender of an
e-mail has an objectively reasonable expectation of privacy in the content of a message while it is
in transmission.