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January 28, 2005
What is a Reasonable Expectation of Privacy in the 21st Century?
I haven't been keeping up with the Supreme Court's decisions lately so I almost missed Illinois v. Caballes, the latest development in 4th Amendment canine sniff jurisprudence (thanks to ambimb for the heads up).
In Caballes the court ruled that police use of drug sniffing dogs in a traffic stop is not a search. Predictably, theres'a great deal of commentary about this ruling. Grits for Breakfast has a revision of the 4th Amendment and links to dozens of other bloggers' reactions to the ruling.
Orin Kerr has some analysis of the ruling and its possible implications based on Justice Stevens' attempt to distinguish this decision from Kyllo, the case in which the court found it was an illegal search for the cops to use thermal imaging equipment to detect what some might call "grow lights" in someone's house.
This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U. S. 27 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity— in that case, intimate details in a home, such as “at what hour each night the lady of the house takes her daily sauna and bath.”
Thus, the focus is moving from the actions of law enforcement to what they are looking for. As Orin Kerr puts it:
The Fourth Amendment traditionally has focused on how the surveillance occurred, rather than the nature of the information obtained. Under the traditional approach, the government could not invade your property without a warrant no matter what information it wished to obtain. Under the rationale followed by the Court today, the government may be free to invade your property so long as they only obtain "non private" information.
The problem is, what can be considered private information in this day and age? If you ask the average person you meet on the street, he would probably reply that private information is what you have in your home, bank account information, credit card information, medical records, etc. However, if you ask someone more in tune with advances information technology, you'll get a completely different answer.
This recent Slashdot story about the dispute between a dead soldier's parents and Yahoo! over whether the parents have a right to his email account was full of posts stating that a person shouldn't consider a Yahoo!Mail account to be private. This isn't the conventional wisdom right now, but how long before email falls outside the "reasonable expectation of privacy?" There's a long-overdue push to computerize medical records. Once that's done, can a person really consider personal information about their health to be private? You hand someone your credit card all the time. Can you truly consider your credit card number to be private?
How long before Kyllo is overturned? Granted, there is a lessened expectation of privacy in a car than there is in a home, but the 4th Amendment has been creeping slowly towards irrelevance for years. The thermal imaging equipment used in Kyllo was considered invasive technology. I would argue that a drug dog is as well.
Putting on my Scalia robe, I note that Merriam-Webster says technology is "the practical application of knowledge especially in a particular area." What is the drug-sniffing dog if not the practical application of the knowledge that dogs can be trained to detect certain substances through their olfactory sense?
My Crim Pro professor pointed out when discussing Jacobsen that a person doesn't have a privacy interest in odors that emanate from their suitcases. There was in incident in Vancouver a few years ago where the smell of marijuana being grown in a house was so strong people could smell it on the street. If people could detect that, certainly a drug-sniffing dog could detect other things going on in houses that a person couldn't detect.
Maybe it is about time for the government to announce that we are all under 24-hour surveillance, doing away with any reasonable expectation of privacy at all. Maybe it doesn't need to.
Posted by Half-Cocked at January 28, 2005 12:24 AM