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The Road to Tragedy Is Paved With Reasonable Expectations

-- By TheoTamayo - 07 May 2024

The Constitution in its current form does not protect privacy in the twenty-first century. The provision intended to protect the right to be let alone anticipates and guards against a specific, narrow, and mostly-obsolete threat. But although the Fourth Amendment embodies a dangerous naïvete in its chosen key terminology, it may only require reforms to the Federal Rules of Evidence, rather than to the Amendment itself, to curb some of its more egregious shortcomings.

Reasonable Violations

It is true that the drafters of the Bill of Rights had a limited conception of the danger a central government could pose to individual liberty. It is also true that orienting the Fourth Amendment against this threadbare conception of tyranny left the provision overmatched against more muscular forms of despotism that have since developed. The status quo would look quite different if the First Congress had anticipated professional intelligence agencies and wickedly effective surveillance technologies and designed the Fourth Amendment with them in mind.

However, I submit that even if subsequent Congresses had adapted the provision to reflect technological and governmental developments to the present by replacing terms that have been rendered obsolete such as “place,” “search” and “seizure,” the Fourth Amendment’s use of “reasonableness” as its lodestar would still doom it to fail to protect privacy against committed government invasion. The drafters wanted to create a government powerful enough to span the continent, and could not have believed that such a government should entirely lack the authority to search and seize its citizens’ persons, houses, papers, or effects. It was inevitable that the Fourth Amendment’s protections for the right of the people to be secure would have some exceptions. But the decision to define the line between permissible and impermissible intrusions using the word “unreasonable” signaled a thumb on the scale in favor of government power and against personal privacy.

A provision that deems reasonable searches and seizures unproblematic and does not define what would make such acts unreasonable simply will not prevent any determined government from encroaching on liberties. As limited as their experience with tyranny may have been, it is beyond unlikely that not a single drafter realized that aspiring tyrants would claim that their actions were reasonable, even if doing so was not incentivized. And it seems equally implausible that none of the architects considered that an elected government would have both a thorough understanding of what the polity that empowered it deemed reasonable and the capacity to influence that popular conception to suit its interests.

Best Efforts, Worst Outcomes

Katz v. United States’ combination of a subjective element of expectation of privacy with an objective element of whether society considers that expectation reasonable represented a major step forward from Olmstead v. United States’ capitulation to surveillance almost four decades earlier. Justice Stewart’s opinion valiantly tries to strike a prudent but protective balance between necessity and liberty. But Katz cannot overcome the base defect of the Amendment it interprets.Bruce Schneier’s 2009 warning that continuing to rely on Katz’s “Expectation of Privacy” test during the information age would eventually lead to no privacy at all has proven prescient. Courts developed the Third-Party doctrine in an age of personal physical communication to provide a framework for how to diminish the expectation of privacy wherever consumers have voluntarily furnished their information. As data about human activity has exploded in volume and value, people have internalized that they can access services for free if they agree to allow those services to collect their information. The lions’ share of them have done so willingly.

The vast majority no longer expect at least some of their online activity to be unmonitored. They do not subjectively believe that they have any privacy. And even if they did, society would not find that expectation objectively reasonable. We The People have exchanged Constitutional protections for better advertisements.

Worse still, this overview arguably understates the perverseness of the current test. By generalizing his critique, Schneier overlooked the most extreme cases in which the “reasonableness” standard defeats itself most spectacularly: the people who are under the most intense surveillance. The fact of that comprehensive surveillance renders their expectation of privacy in nearly everything they do less reasonable. Their privacy is—somehow—less protected than it otherwise would be because the government is watching them.

First Steps

The Fourth Amendment is certainly a tragedy. It makes a noble promise that its pathetic protections cannot keep, and we are all less free because of it. But that does not mean we are without recourse, or that the only way to address the situation is to amend the Amendment. The Federal Rules of Evidence allow any party to introduce relevant evidence unless the Constitution, a federal statute, the Rules themselves, or Supreme Court-prescribed rules provide otherwise. Although constitutional privacy protections remain the ultimate goal and the Fourth remains the most obvious path, the government’s perverse contortions of the provision into a justification to do exactly what it nominally defends against demand rapid response, and legislation stands the best chance of making it happen. Congress should therefore legislate against the admissibility of evidence obtained without a valid warrant, and, if possible, deny intelligence agencies any exceptions to this rule.

As simple and limited as this step would be, its effects could prove both immediate and domino-like. This law would not prevent the government from surveilling in ways that the Fourth Amendment should be understood to prohibit. It would not even prevent espionage agencies from using their previous reconnaissance to justify further efforts. But it would allow targets who challenge the validity of their own surveillance to force those agencies to admit to a court that they lack a warrant authorizing their invasions. It would underscore the loss that a worse-than-powerless privacy provision represents to a nation that considers itself the Land of the Free. And it might even remind judges and spooks alike that this country claims to protect the individual’s right to be let alone.

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