th
4
Amendment
Richard Warner
Chicago-Kent College of Law
rwarner@kentlaw.edu
Drone Over Elgin
Domestic Drone Authorizations
The Map

In the basement of a newly renovated building in
Colorado, an army of people is working on a map of
North America. It is a multidimensional, multimedia, top
secret compendium of very specific data accumulating at
a dizzying rate. The ultimate dream of to be able to point
to any block in any city in the United States and gain
instant access to digitized information for that location,
from speed cameras to wireless network signals, street
level photography and video, property records, electricity
consumption, floor plans and security layouts, even
traffic light sequences. Also incoming would be ultrahigh-resolution imagery that can peer into backyards,
and pinpoint activity inside the walls of an office building,
power station, or, with proper approval, a private home,
from the living room to the bathroom to the children’s
bedrooms.

Dana Priest and William Arkin, Top Secret America: The
Rise of the New American Security State
Another Reason to Look at the
Amendment


It focuses on reasonable expectations of privacy.
“Laws and regulations rarely specify the security
measures . . Most simply obligate companies to
establish and maintain ‘reasonable’ or
‘appropriate’ security measures . . but give no
further direction or guidance.”


th
4
Thomas J. Smedinghoff, “Defining the Legal Standard for
Information Security: What Does ‘Reasonable’ Security Really
Mean?”
Same problem in private data collection.
th
4

Amendment
“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.”
The Warrant Requirement


A warrant is a written order signed by a court
authorizing a law-enforcement officer to
conduct a search, seizure, or arrest.
Probable cause exists when the facts and
circumstances within the police officer's
knowledge provide a reasonably trustworthy
basis for a man of reasonable caution to
believe that a criminal offense has been
committed or is about to take place

See Carroll v. United States, 267 U.S. 132 [1925].
The Warrant Requirement


Particularly describing: Warrants must
provide enough detail so that an officer with
the warrant can ascertain with reasonable
effort the persons and places identified in the
warrant.
Neutrality; The magistrate before whom an
officer applies for a warrant must be neutral
and detached.
What The


th
4
Amendment Protects
Hoffa: The 4th Am. “protects the security a
man relies upon when he places himself or
his property within a constitutionally protected
area, be it his home or his office, his hotel
room or his automobile.”
But: “The petitioner . . . was not relying on
the security of the hotel room; he was relying
upon his misplaced confidence that Partin
would not reveal his wrongdoing.”
The Risk of Disclosure to Others


“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.”
The Court means “assume the risk” in a
sense that implies that the government was
not at fault for using Partin as an informant.
An Analogy

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

Ralph trusts Roger, so he confides in him that
he is being unfaithful to his wife.
Did Ralph “assume that risk” the Roger would
tell his wife?
There circumstances in which Roger would
tell—if Roger fell in love with the wife and told
her. It would be unreasonable to think this
was not possible.
Roger assumes this risk.
Ralph and Hoffa

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Suppose Roger is Ralph’s closest friend in
whom Ralph confides after Roger promises
he will not tell anyone what Ralph is about to
tell him.
If Ralph tells Roger’s wife, is Roger at fault?
Hoffa trusted Partin. It was precisely that
trust that the government exploited. So why
is the government not at fault?
Katz v. United States bears on this question.
Katz v. United States




Katz transmitted “wagering information by
telephone from Los Angeles to Miami and
Boston in violation of a federal statute.”
The police collected evidence by attaching a
listening device to the outside of a phone
booth.
The police argued that a phone both was not
a place protected by the 4th Amendment.
Katz argued it was.
People, Not Places


“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 court holds a warrant was required.
Harlan’s Concurrence

4th Amendment protection requires


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a subjective expectation of privacy
that is objectively reasonable.
Neither the majority nor Harlan explain why
Katz’s expectation of privacy was objectively
reasonable.
So we don’t know whether Hoffa’s was or not.
Possible combinations of subjective and objectively reasonable
expectations
Expectation
of privacy
Objectively Not objectively
reasonable reasonable
Expectation
of lack of privacy
Objectively Not objectively
reasonable reasonable
No expectation
Objectively Not objectively
reasonable reasonable
4th Amendment after Katz
Expectation
of privacy
Objectively Not objectively
reasonable reasonable
Expectation
of lack of privacy
Objectively Not objectively
reasonable reasonable
No expectation
Objectively Not objectively
reasonable reasonable
Nonexistent case?
Irrelevant under Katz?
Created by
Disclosure to
3rd parties?
Expectation
of privacy
Objectively Not objectively
reasonable reasonable
4th Amendment after Katz
Expectation
of lack of privacy
Objectively Not objectively
reasonable reasonable
No expectation
Objectively Not objectively
reasonable reasonable
Nonexistent case?
Created by
Disclosure to
3rd parties?
Irrelevant under Katz?
What Is A Search?


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4th Am.: “The right of the people to be secure
in their persons, houses, papers, and effects,
against unreasonable searches and
seizures . . .”
Hoffa did not involve a search, but Katz did.
After Katz: An unreasonable search for 4th
amendment purposes is a search for things
or data that (1) one expected would remain
private, (2) which expectation was
reasonable.

Or so it would seem.
Kyllo v. United States



A Fourth Amendment search does not
occur—even when the explicitly protected
location of a house is concerned—unless (1)
“the individual manifested a subjective
expectation of privacy in the object of the
challenged search,” and (2) “society [is]
willing to recognize that expectation as
reasonable.”
So: if (1) and (2), then 4th Am. unreasonable
search.
But: If 4th Am. unreasonable search, then (1)
and (2)?
Evidently Not


The majority: “Obtaining by sense-enhancing
technology any information regarding the
interior of the home that could not otherwise
have been obtained without physical
“intrusion into a constitutionally protected
area” constitutes a search—at least where
the technology in question is not in general
public use.”
So: If 4th Am. unreasonable search, then (1)
and (2), or certain cases involving
constitutionally protected areas?
Scalia’s Attitude Toward Katz

Fifteen years ago [1998], Justice Scalia
dismissed the Katz framework as a “fuzzy
standard” and a “self-indulgent test” that was
based on a “catchy slogan” that had “no
plausible foundation in the text of the Fourth
Amendment.”

Orin Kerr, “The Curious History of Fourth Amendment
Searches,” Supreme Court Review 2013 citing
Minnesota v. Carter, 525 US 83, 91 (1998) (Scalia, J,
concurring).
The Dissent: Two Principles
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(1) “The homeowner has a reasonable
expectation of privacy concerning what takes
place within the home.”
(2) “ ‘What a person knowingly exposes to
the public, even in his own home or office, is
not a subject of Fourth Amendment
protection.’ ”
Katz provides a rationale for both principles.
The dissent thinks the second principle
applies. Either way, no need to appeal to
“constitutionally protected areas.”
Smith v. Maryland

A good way to approach these issues is
through the older decision of Maryland v.
Smith, the pen register case.


A pen register records numbers dialed on a
telephone. It does not record conversations (or
even if calls are completed).
Patricia McDonough was receiving
threatening and obscene phone calls a man
who said he was the one who had robbed
her.
The Use of the Pen Register


One phone call asked McDonough to step
out on her porch, and she saw a man in a car
and got the license plate number, which the
police used to get Smith’s phone number.
The police—without a warrant—used a pen
register to record numbers dialed from
Smith’s phone. A call was placed to
McDonough, and, on the basis, the police got
a warrant to search Smith’s home.
Smith’s Defense

Smith claimed that the use of the pen register
was a 4th Amendment search and hence
required a warrant (and hence that all the
evidence collected as a result of the pen
register use was inadmissible).
The Majority: No Subjective Expectation


Smith’s claim that the “installation and use
constituted a “search” necessarily rests upon
a claim that he had a “legitimate expectation
of privacy” regarding the numbers he dialed
on his phone.”
The majority claims first: no subjective
expectation.

People do not actually expect dialed numbers to
be private because they realize that phone
companies record dialed numbers.
Second: Not Objectively Reasonable
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
“This Court consistently has held that a
person has no legitimate expectation of
privacy in information he voluntarily turns
over to third parties.”
“When he used his phone, petitioner . . .
petitioner assumed the risk that the company
would reveal to police the numbers he
dialed.”

Compare Hoffa.
Marshall: Subjective Expectation

There is a subjective expectation of privacy.

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“Those who disclose certain facts to a
bank or phone company for a limited
business purpose need not assume that
this information will be released to other
persons for other purposes.”
Compare Hoffa and Ralph.
Marshall: Objectively Reasonable

The expectation is reasonable.


There has to be choice: “Implicit in the
concept of assumption of risk is some
notion of choice.”
“It is idle to speak of “assuming” risks in
contexts where, as a practical matter,
individuals have no realistic alternative.”
Marshall: Objectively Reasonable

In addition “To make risk analysis dispositive
in assessing the reasonableness of privacy
expectations would allow the government to
define the scope of Fourth Amendment
protections.”

“Law enforcement officials, simply by announcing
their intent to monitor the content of random
samples of first-class mail or private phone
conversations, could put the public on notice of
the risks they would thereafter assume in such
communications.”
Marshall’s Conclusion

“Whether privacy expectations are legitimate
within the meaning of Katz depends



not on the risks an individual can be presumed
to accept when imparting information to third
parties,
but on the risks he should be forced to
assume in a free and open society.
By its terms, the constitutional prohibition of
unreasonable searches and seizures assigns
to the judiciary some prescriptive
responsibility.”
United States v. Jones (Scalia Again)

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The police attached a GPS tracking device to
a car without a warrant.
Scalia, writing for the majority claims that
there is a 4th Am. search if and only if


the search violates are reasonable
expectation of privacy, or
the search is of a “constitutionally
protected area.”
The Alleged Tie to Trespass
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“Our Fourth Amendment jurisprudence was
tied to common-law trespass, at least until
the latter half of the 20th century.”
This ties the application of the 4th
Amendment to a body of more or less well
articulated legal doctrine.

So less “prescriptive responsibility.”
The Jones Holding

The majority holds the use of the GPS device
was a search, but it does not hold it was
unreasonable.


The government’s main argument was that no
search occurred because there was no
reasonable expectation of privacy.
“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 . . . 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.”
Wisconsin v. Brereton
(804 N.W.2d 243 (2013))

The Supreme Court of Wisconsin recently
held that GPS surveillance required a
warrant, quoting with approval Mayor: "even
in the absence of a trespass, [because] a
Fourth Amendment search occurs when the
government violates a subjective expectation
of privacy that society recognizes as
reasonable." Id. at 954–55 (Sotomayor, J.,
concurring) (quoting Kyllo v. United States,
533 U.S. 27, 33 (2001))”.
Alito’s Dissent


“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). ”
If Tracking Use Is the Key, Then . . ?
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Surveillance drones
Surveillance cameras
The map
Big Data analysis
Is all of this is permissible under the third
party disclosure doctrine?
Mayor on Third Party Disclosure
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“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.”
In The Matter Of An Application Of The United States Of
America For An Order Authorizing The Release Of Historical Cellsite Information

“A person travelling in an automobile on public
thoroughfares has no reasonable expectation of
privacy in his movements from one place to
another" because "he voluntarily conveyed to
anyone who wanted to look the fact that he was
travelling over particular roads in a particular
direction, the fact of whatever stops he made,
and the fact of his final destination when he
exited from public roads onto private property."

United States v. Knotts, 460 U.S. 276, 281- 82
(1981)
Prolonged Surveillance

“The whole of one's movements over the
course of a month is not constructively
exposed to the public because, like a rap
sheet, that whole reveals far more than the
individual movements it comprises. The
difference is not one of degree but of kind. . .”

United States v. Maynard, 615 F.3d 544 (D.C Cir.
2010) .
Aggregated Cell Phone Data

“Cell-site-location records present even
greater constitutional concerns than the
tracking at issue in Maynard. Even United
States Courts of Appeals that have approved
the form of electronic tracking at issue in
Maynard, have noted that mass electronic
surveillance presents greater constitutional
concerns.”

In The Matter Of An Application Of The United
States Of America For An Order Authorizing The
Release Of Historical Cell-site Information
Wholesale Surveillance

“For example, in United States v. Marquez, 605
F.3d 604, 610 (8th Cir. 2010) the court noted, “It
is imaginable that a police unit could undertake
"wholesale surveillance" by attaching such
devices to thousands of random cars and then
analyzing the volumes of data produced for
suspicious patterns of activity. Such an effort, if it
ever occurred, would raise different concerns
than the ones present here. In this case, there
was nothing random or arbitrary about the
installation and use of the device.””

In The Matter Of An Application Of The United States Of America
For An Order Authorizing The Release Of Historical Cell-site
Information
Wholesale Surveillance?
rd
3

Party Disclosure Doctrine
The court creates an exception to the
doctrine for “cases involving disclosure to
service-provider intermediaries,” where
disclosure would amount to prolonged
surveillance.
Public Disclosure and Facebook

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If you post on Facebook, to you disclose the
posted information to the public?
The issue comes up in R.S. v. Minnewaska
Area School District .
Minnewaska on Public Disclosure

“Given the fundamental similarities between
email and traditional forms of communication, it
would defy common sense to afford emails
lesser Fourth Amendment protection.”


United States v. Warshak, 631 F.3d 266, 285–86 (6th
Cir.2010).
Numerous courts have similarly concluded that
individuals maintain a reasonable expectation of
privacy with respect to their private email
accounts and that such accounts are entitled to
the same Fourth Amendment protections as
conventional letters.
Minnewaska on Public Disclosure

One court recently concluded that private
Facebook messages are, like email,
“inherently private” because such messages
“are not readily accessible to the general
public.” Crispin v. Christian Audigier, Inc., 717
F.Supp.2d 965, 991 (C.D.Cal.2010). The
Court agrees that one cannot distinguish a
password-protected private Facebook
message from other forms of private
electronic correspondence.
Marshall Was Right

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“Whether privacy expectations are
legitimate. . . on the risks he should be
forced to assume in a free and open
society.”
We will see a very similar point in private
data collection.
Overview
Reasonable expectations
Governmental data
collection
What risks does a citizen
assume?
Private data collection
Economic incentives
Role of norms in
markets
Non-market norms
required