Reasonability and Expectations of Internet Privacy

One of the reasons I make an effort in my teaching to provide clear, explicit historical context connecting the formative tradition of our constitutional law with the current issues is to avoid the confusion that arises from the attempt (which is never not being tried by somebody, despite its disutility) to invent "constitutional law" as a subject divorced from the contingencies of historical development. The contour of the Fourth Amendment is poorly captured in a short string of a few decades' cases in which "reasonable expectation of privacy" is used as a synonym for "reasonable." The facts that the Amendment's language protects places, and things in those places, that it concerns a right of security, not a right of privacy, and that its language grows out of controversies involving political offenses are all part of the historical context of the limitation on state power. Reasoning as though the Fourth Amendment were equal to a provision calling for reasonable privacy expectations to be protected against searches by government agents unless a warrant has issued upon showing of probable cause to a neutral magistrate will not correctly predict the outcomes of the cases over any lengthy period of time, and will certainly not explain how the people who expressed this principle in eighteenth-century British North American legal documents understood it.

The sharp distinction between criminal and other coercive governmental process is also ahistorical. The common law is not quite so sharp as that, for one thing. To forget, moreover, how important political offenses are in English legal history with respect to the rights of criminal defendants generally, is both to misunderstand the past and to be a little complacent about our present. We certainly do like to think of our criminal law system as free of political offense prosecutions. But this is not quite as simple as it tends to seem to us. In the precise context of the Fourth Amendment's development out of English historical circumstances, as I labored to demonstrate in class, the political offenses of the seventeenth century, and the use of mixed civil and criminal modes of coercion against political dissidents, both played a significant role.

One could have a sort of purely prescriptive constitutional reasoning which was not at all about how words came to be used or what they meant to the people who used them, but was only responsive to current concerns. I have more sympathy for that approach than most constitutional law professors, because they mostly (quite correctly) think this would result in a constitutional law indistinguishable from politics, which they—being constitutional law professors—think is not the case with the constitutional law they teach. But even I find it difficult to take very seriously an argument that asks me explicitly to ignore the history of our constitutional arrangements in order to make constitutional policy based on purely logical relationships among secondary entities, like the phraseology of judicial opinions or the strength of our contemporary confidence in the political independence and self-restraint of our prosecutors, police, and internal security organs. A Fourth Amendment that protects privacy interests in my information held in third hands would be a useful provision in a constitution, but it isn't what is in this constitution, unless this constitution is whatever we happen to say it is today.