From privacy to liberty: The fourth amendment after lawrence

UCLA Law Review

Volumn 57, Issue 1, 2009, Pages 1-69

  Crocker, Thomas P ^a  

^a YALE UNIVERSITY   (United States)

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EID: 72649104980     PISSN: 00415650     EISSN: None     Source Type: Journal    
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References (486)

1. See, e.g., Amol Sharma & Jessica E Vascellaro, Phones Will Soon Tell Where You Are, WALL ST. J., Mar. 28, 2008, at Al.
2. United States v. Miller, 425 U.S. 435, 443 (1976).
3. Moreover, when sitting in the coffee shop, she is located in a public place. Police are free to conduct surveillance of her public movements with no requirement of individualized suspicion. See United States v. Karo, 468 U.S. 705, 721 (1984) (holding that there is no expectation of privacy in public movements).
4. United States v. Knotts, 460 U.S. 276, 281-82 (1983) (same).
5. See, e.g., CHRISTOPHER SLOBOGIN, PRIVACY AT RISK: THE NEW GOVERNMENT SURVEILLANCE AND THE FOURTH AMENDMENT (2007).
6. Donald L. Doernberg, "Can You Hear Me Now?": Expectations of Privacy, Fake Friends, and the Perils of Speaking Under the Supreme Court's Fourth Amendment Jurisprudence, 39 IND. L. REV. 253, 284 (2006) ("The harm that the Amendment protects against is the loss of the sense of security that inevitably accompanies the idea that no matter where one is, and no matter what one does, the government may be listening or watching.").
7. Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 FORDHAM L. REV. 747, 753 (2005) ("The third-party doctrine presents one of the most serious threats to privacy in the digital age.").
8. Scott E Sundby, "Everyman"'s Fourth Amendment: Privacy or Mutual Trust Between Government and Citizen?, 94 COLUM. L. REV. 1751, 1761 (1994) (criticizing the Court's reliance on privacy because "[i]f an individual's privacy is already largely abrogated, any additional privacy intrusions will appear to be only incremental by comparison").
9. But see, Orin S. Kerr, The Case for the Third-Party Doctrine, 107 MICH. L. REV. 561 (2009) (defending the third-party doctrine).
10. Mary I. Coombs, Shared Privacy and the Fourth Amendment, or the Right of Relationships, 75 CAL L. REV. 1593, 1593 (1987).
11. Moreover, she argues that "[a] view of the world that recognizes the essential interconnectedness of people and the importance of intimacy and sharing is foreign to the atomistic social theory underlying the Court's present doctrine." Id. at 1635.
12. 539 US. 558 (2003).
13. Id. at 564.
14. Id. at 578 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847 (1992)).
15. Mapp v. Ohio, 367 U.S. 643, 656 (1961).
16. See Katz v. United States, 389 U.S. 347, 357 (1967) ("[SJearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.").
17. Jones v. United States, 357 U.S. 493, 497 (1958) ("It is settled doctrine drat probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant.").
18. Lawrence, 539 U.S. at 562.
19. Id.
20. 547 U.S. 103 (2006).
21. Id. at 109-11. Although the Court ultimately denies police the authority to search in the particular circumstances of this case, see infra part II.B, it affirms the general proposition that we assume the legal risks of disclosure when sharing with others. Id.
22. Lawrence, 539 U.S. at 567.
23. Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984).
24. Lawrence, 539 US. at 567.
25. See WOLFGANG SOFSKY, PRIVACY: A MANIFESTO 7 (Steven Rendall, trans., Princeton U. Press 2007) ("People leave more traces behind them than they realize.").
26. See Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U. CHI. L. REV. 919, 923-25 (2005).
27. Professor Jed Rubenfeld, for example, has recently called for reorienting Fourth Amendment inquiry to ask "whether the search-and-seizure power the state has asserted could be generalized without destroying the people's right of security." Jed Rubenfeld, The End of Privacy, 61 STAN. L. REV. 101, 131 (2008). Under Rubenfeld's approach, the Court should hew closely to Fourth Amendment text to protect the people's right to security rather than their right to privacy.
28. See Thomas P. Crocker, Envisioning the Constitution, 57 AM. U. L. REV. 1, 3 (2007).
29. Lawrence's rational is not entirely transparent, making possible either broad or narrow readings. See Elizabeth M. Glazer, When Obscenity Discriminates, 102 Nw. U. L. REV. 1379, 1411-18 (2008) (discussing different ways of reading Lawrence). This article chooses to read Lawrence broadly.
30. Lawrence v. Texas, 539 U.S. 558, 562 (2003).
31. 468 U.S. 609 (1984).
32. 530 US. 640 (2000).
33. 389 U.S. 347 (1967).
34. See Georgia v. Randolph, 547 U.S. 103, 109-11 (2006).
35. Illinois v. Rodriguez, 497 U.S. 177 (1989).
36. United States v. Jacobsen, 466 U.S. 109, 117 (1984).
37. Daniel J. Solove, Conceptualizing Privacy, 90 CAL. L. REV. 1087, 1095 (2002).
38. Id. at 1095-99;.
39. see LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS §§ 66-67 (G.EM. Anscombe trans., 1958).
40. See Hamdi v. Rumsfeld, 542 U.S. 507, 530-31 (2004) (balancing security and liberty).
41. See also the Fourth Amendment "special needs" cases, beginning with New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring) ("Only in those exceptional circumstances in which special needs, beyond die normal need for law enforcement, make die warrant and probable-cause requirement impracticable, is a court entitled to substitute its balancing of interests for that of the Framers."),.
42. as well as Vemonia Sch. Dist. v. Acton, 515 U.S. 646, 653-54 (1995) (finding a special need for student athlete drug testing).
43. Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990) (finding a special need for highway sobriety checkpoints),.
44. and MacWade v. Kelly, 460 F.3d 260, 271 (2d Cir. 2006) (upholding random subway bag searches because "preventing a terrorist from bombing the subways constitutes a special need").
45. See Stanley v. Illinois, 405 U.S. 645 (1972).
46. Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925).
47. Meyer v. Nebraska, 262 U.S. 390 (1923).
48. See Loving v. Virginia, 388 U.S. 1 (1967) (invalidating a law criminalizing interracial marriage as violating equal protection).
49. Skinner v. Oklahoma, 316 U.S. 535 (1942) (holding that, under equal protection, forced sterilization of convicted felons was unconstitutional).
50. 381 US. 479 (1965).
51. See id. In Lawrence v. Texas, Justice Kennedy emphasizes the interlocking nature of due process and equality. He writes, "Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests." 539 U.S. 558, 575 (2003).
52. see also Laurence H. Tribe, Lawrence v. Texas: The 'Fundamental Right' That Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1902-07 (2004) (discussing die Supreme Court's blending of due process and equality).
53. Griswold, 381 U.S. at 485.
54. Boyd v. United States, 116 U.S. 616, 630 (1886).
55. The indirect complexity of die Court's rationale was at least partially caused by the Court's desire to avoid the ill-reputed notion of Substantive Due Process derived from Lochner v. New York, 198 U.S. 45 (1905),.
56. repudiated in cases starting with West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
57. United States v. Carotene Products Co., 304 U.S. 144 (1938).
58. Griswold, 381 U.S. at 483.
59. citing NAACP v. Alabama, 357 U.S. 449, 462 (1958).
60. Id. at 486.
61. See Carey v. Population Servs. Int'l, 431 U.S. 678, 687 (1977) ("[T)he Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State.").
62. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) ("If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.").
63. Eisenstadt, 405 U.S. at 453.
64. On the idea that the issue of choice related to pregnancy is one of equality, see Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985).
65. 410 US. 113(1973).
66. Id. at 153.
67. As Louis Henkin put it, "[w]hat we do not know with confidence are the determinants of that zone of privacy, or the principle of inclusion within it." Louis Henkin, Privacy and Autonomy, 74 COLUM. L. REV. 1410, 1423 (1974). This method of recognizing overlapping "zones of privacy" throughout the Bill of Rights has been subjected to withering criticism.
68. See, e.g., John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 947 (1973) ("[It] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be").
69. Additional criticisms include Geoffrey C. Hazard Jr., Rising Above Principle, 135 U. PA. L. REV. 153, 166 (1986) ("Roe is justly subject to criticism on grounds of legitimacy... because it can fairly be said that it went too far beyond precedent. Roe tried to effectuate through the medium of a single judicial decision a greater change in the law than is permitted under our constitutional system.").
70. Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. REV. 480, 480 (1990) ("Roe v. Wade is an unpersuasive opinion, and the root of its unpersuasiveness is the Supreme Court's failure to ground its decision, that abortion is a fundamental right, in the text of the Constitution." (footnote omitted)).
71. Roe, 410 US. at 152.
72. The relevant provisions include the First, Fourth, Fifth, and Ninth Amendments, as well as the liberty guaranteed by the Fourteenth Amendment. Id. at 152-53.
73. Id. at 153.
74. See Webster v. Reprod. Health Servs., 492 U.S. 490 (1989).
75. Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986).
76. City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416(1983)
77. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976).
78. 505 US. 833 (1992).
79. Id. at 844, 901.
80. Id. at 847 (emphasis added).
81. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1131 (1991) ("Instead of being studied holistically, the Bill has been chopped up into discrete chunks of text with each bit examined in isolation.").
82. Casey, 505 U.S. at 851.
83. Id. at 853.
84. Id. at 852.
85. On the importance of developing constitutional vision, see Thomas P. Crocker, Envisioning the Constitution, 57 AM. U. L. REV. 1 (2007).
86. Casey, 505 US. at 851.
87. For some there is no ambiguity in the Court's decision to protect a woman's right to make choices regarding her pregnancy. See, e.g., Steven G. Calabresi, How to Reverse Government Imposition of Immorality: A Strategy for Eroding Roe v. Wade, 31 HARV.J.L&PUB.POL'Y85, 85 (2008) {"Roev. Wade was... not merely wrongly decided. It was also profoundly immoral.").
88. 478 US. 186(1986).
89. Casey, 505 U.S. at 852.
90. 478 US. at 190.
91. In dissent, Justice Blackmun argued that the majority was indeed blind to the facts and implications of both precedent and the current case. He wrote, "Only the most willful blindness could obscure the fact that sexual intimacy is 'a sensitive, key relationship of human existence.'" Id. at 205.
92. (Blackmun, J., dissenting) (quoting Paris Adult Theatre I v. Slaton, 415 U.S. 49, 63 (1973)).
93. Furthermore, the majority's unwillingness to see the principle animating the Court's precedent was possible only by "closfing] our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause." Id. at 204.
94. (quoting Moore v. City of East Cleveland, 431 U.S. 494, 501 (1977).
95. Casey, 505 U.S. at 852 (recognizing consequences "for the woman... for the persons who perform and assist in the procedure; for the spouse, family, and society... for the life or potential life that is aborted").
96. See Loving v. Virginia, 388 U.S. 1 (1967).
97. See Turner v. Safley, 482 U.S. 78 (1987).
98. Zablocki v. Redhail, 434 U.S. 374 (1978).
99. See Meyer v. Nebraska, 262 U.S. 390 (1923).
100. See Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
101. Griswold v. Connecticut, 381 U.S. 479 (1965).
102. Casey, 505 U.S. at 847 (emphasis added).
103. 539 U.S. 558 (2003).
104. Id. at 578.
105. Id. at 562.
106. 381 U.S. 479.
107. Id. at 485.
108. Lawrence, 539 U.S. at 562-63.
109. see also Dale Carpenter, The Unknown Past of Lawrence v. Texas, 102 MICH. L. REV. 1464 (2004) (investigating the factual circumstances of the Lawrence case).
110. Lawrence, 539 U.S. at 567.
111. Id.
112. Id. at 590 (Scalia, J., dissenting);.
113. see also Cass R. Sunstein, Liberty After Lawrence, 65 OHIO ST. LJ. 1059 (2004) (discussing Lawrence's implications for various forms of sex, marital and employment regulations).
114. Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, 2003 SUP. Cr. REV. 27 (same).
115. Under state constitutional provisions, state barriers to gay marriage have been struck down in Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003),.
116. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
117. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). Challenges to the Defense of Marriage Act are pending.
118. See Abby Goodnough & Katie Zezima, Suit Seeks to Force Government to Extend Benefits to Same-Sex Couples, N.Y. TIMES, Mar. 3, 2009, at A12.
119. I have in mind here something more comprehensive when referring to ordinary or everyday life. Charles Taylor explains: "'Ordinary life' is a term of art I introduce to designate those aspects of human life concerned with production and reproduction, that is, labour, the making of the things needed for life, and our life as sexual beings, including marriage and the family." CHARLES TAYLOR, SOURCES OF THE SAF: THE MAKING OF THE MODERN IDENTITY 211 (1989). Some of the practices of ordinary life are both more central to personal notions of meaning and more private insofar as they encompass aspects of life shared with increasingly fewer persons as we move inward from communities and friends, to extended family units, to the marital relation itself.
120. Lawrence, 539 U.S. at 575 ("The stigma this criminal statute imposes, moreover, is not trivial.").
121. Id. at 567.
122. Id.
123. Id.
124. See id. at 594 (Scalia, J., dissenting) ("Not once does [the Court] describe homosexual sodomy as a 'fundamental right' or a 'fundamental liberty interest."').
125. See Bowers v. Hardwick, 478 U.S. 186, 191 (1986) (framing the issue as involving "a fundamental right to engage in homosexual sodomy").
126. Lawrence, 539 U.S. at 567.
127. Id.
128. Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000).
129. Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).
130. Id.
131. Id. at 618-19.
132. Id. at 619.
133. Id. at 618.
134. Regarding liberty, the Court has recognized the importance of interpersonal relations. Regarding equality, the Court has often rejected the importance of group identity. Regarding equal protection, Justice O'Connor claimed that the Constitution "protect[s] persons, not groups." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Liberty protections for associations and intimacy involve far more personal and interpersonal relations than the relations that exist merely on the basis of a group classification according to characteristics such as race or gender.
135. Limitations on state interference may even apply to the military's Don't Ask, Don't Tell policy. The Ninth Circuit held that "[w]hen the government attempts to intrude upon the personal and private lives of homosexuals, in a manner that implicates the rights identified in Lawrence, " it must justify its intrusion to satisfy a heightened standard of judicial review. Witt v. Dep't of the Air Force, 527 F.3d 806, 819 (9th Or. 2008).
136. 530 U.S. 640 (2000).
137. Id. at 653.
138. Id. at 654.
139. The problem with this reasoning is that all racist or misogynist employers want to exclude others as part of the expression of their views. See Jed Rubenfeld, The First Amendment's Purpose, 53 Stan. L. Rev. 767 (2001). (Pubitemid 33649667)
140. The more limited view of associational rights is expressed: "(T]he First and Fourteenth Amendments protect certain forms of orderly group activity. Thus we have affirmed the right 'to engage in association for the advancement of beliefs and ideas."' NAACP v. Button, 371 U.S. 415, 430 (1963), (quoting NAACP v. Alabama, 357 U.S. 449, 460 (1958));.
141. see also NAACP v. Alabama, 357 U.S. at 460 ("It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.").
142. Dale, 530 US. at 659.
143. Such reasoning implies that the group as a group has a single view on homosexuality that would be severely burdened in the same way that an individual would be burdened to adopt views she did not hold. But the facts do not support this proposition, for no doubt there existed internal dissent and difference nationally over this very issue of including gay members. See Madhavi Sunder, Cultural Dissent, 54 STAN. L. REV. 495, 508 (2001) ("[T]he Court ignored internal dissent in the Scouts over homosexuality and treated Boy Scouts culture like a 'thing' that is static, homogeneous, bounded, and distinct.").
144. Dale, 530 US. at 659.
145. Jamal Greene argues that the Court in both Dale and Lawrence protects what he calls "metaprivacy, " "the right to engage in status-definitional conduct free from normalizing governmental interference." jamal Greene, Beyond Lawrence: Metaprivacy and Punishment, 115 YALE L.J. 1862, 1875 (2006).
146. The right to shed governmentally imposed stigma is an important due process development. "Themes of respect and stigma are at the moral center of the Laurence opinion, and they are entirely new to substantive due process doctrine." Robert C. Post, Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 97 (2003).
147. See infra Part IV.
148. See, e.g., Washington v. Glucksberg, 521 U.S. 707 (1997).
149. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990).
150. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
151. Lawrence acknowledges the importance of "the respect the Constitution demands for the autonomy of the person in making these choices." Lawrence v. Texas, 539 U.S. 558, 574 (2003).
152. Bowers v. Hardwick, 478 U.S. 186, 205 (1986) (Blackmun, J., dissenting).
153. (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984)).
154. Lawrence, 539 U.S. at 562.
155. See Robert C. Post, Three Concepts of Privacy, 89 GEO. L.J. 2087, 2092 (2001) ("To equate privacy widi dignity is to ground privacy in social forms of respect that we owe each other as members of a common community.").
156. James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 YALE LJ. 1151, 1214(2004).
157. Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986).
158. See, e.g., Louis Henkin, Privacy and Autonomy, 74 OOLUM. L. REV. 1410, 1425 (1974) ("Primarily and principally the new Right of Privacy is a zone of prima facie autonomy.").
159. Even Lawrence recognizes "the respect the Constitution demands for the autonomy of the person in making (particular] choices, " Lawrence, 539 U.S. at 574.
160. following Casey's emphasis that "these matters, involving the most intimate and persona choices a person may make in a lifetime-" Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992).
161. Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 746 (5th Cir. 2008) ("The case... is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.").
162. But see Williams v. Att'y Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004) (holding that an Alabama anti-obscenity statute prohibiting the sale of sex toys does not violate a fundamental right under Lawrence).
163. The "right to be let alone" was first conceptualized by Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 193 (1890).
164. Later Justice Brandeis articulated the right: "The makers of our Constitution... conferred, as against the Government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, ]., dissenting).
165. Autonomy and privacy are concepts with multiple and overlapping meanings. See generally Solove, supra note 28.
166. See id. at 1099-102.
167. As Charles Fried suggests, " privacy is not simply an absence of information about us in the minds of others; rather it is the control we have over information about ourselves." Charles Fried, Privacy, 77 YALE L.J. 475, 482 (1968).
168. Ruth Gavison also writes, "[a] loss of privacy occurs as others obtain information about an individual, pay attention to him, or gain access to him." Ruth Gavison, Privacy and the Limits of Law, 89 YALE LJ. 421, 428 (1980).
169. William James, THE PHILOSOPHY OF WILLIAM JAMES: SELECTED FROM HIS CHIEF WORKS 128 (Horace M. Kallen, ed., The Modern Library 1953) (1925).
170. See Lawrence v. Texas, 539 U.S. 558, 562 (2003) (protecting "liberty of the person both in its spatial and in its more transcendent dimensions").
171. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (articulating the "right to define one's own concept of existence").
172. See generally Erving Goffman, THE PRESENTATION OF SELF IN EVERYDAY LIFE (1973).
173. Smith v. Maryland, 442 U.S. 735, 743 (1979).
174. Joel Feinberg, Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?, 58 NOTRE DAME L. REV. 445, 454 (1983). Feinberg enumerates some of the relevant life decisions as "what courses of study to take, what skills and virtues to cultivate, what career to enter, whom or whether to marry, which church if any to join, whether to have children, and so on." Id.
175. Casey, 505 U.S. at 851.
176. Sandel explains: "The new privacy protects a person's 'independence in making certain kinds of important decisions, ' whereas the old privacy protects a person's interest 'in avoiding disclosure of personal matters.'" Michael J. Sandel, Moral Argument and Liberal Toleration: Abortion and Homosexuality, 77 CAL L. REV. 521, 524 (1989).
177. (citing Whalen v. Roe, 429 U.S. 589, 599-600 (1977)). Both forms of privacy involve autonomous control over aspects of one's life.
178. The concept of privacy eludes definition, ranging over a number of different interests and values. Robert Post has lamented that "[p]rivacy is a value so complex, so entangled in competing and contradictory dimensions, so engorged with various and distinct meanings, that I sometimes despair whether it can be usefully addressed at all." Post, supra note 111, at 2087.
179. Moreover, Daniel Solove suggests that "[t]he difficulty in articulating what privacy is and why it is important has often made privacy law ineffective and blind to the larger purposes for which it must serve." See Solove, supra note 28, at 1090.
180. Lawrence v. Texas, 539 U.S. 558, 562 (2003).
181. Fried, supra note 119, at 485.
182. Id. at 484; see also James Rachels, Why Privacy Is Important, 4 PHIL &. PUB. AFF. 323, 329 (1975) ("[B]ecause our ability to control who has access to us, and who knows what about us, allows us to maintain the variety of relationships with other people that we want to have, it is, I think, one of the most important reasons why we value privacy.").
183. Jeffrey Reiman describes this approach as "a market conception of personal intimacy, " through which "[t]he reality of my intimacy with you is constituted not simply by the quality and intensity of what we share, but by its unavailability to others-in other words, by its scarcity." Jeffrey H. Reiman, Privacy, Intimacy, and Personhood, 6 PHIL. & PUB. AFF. 26, 32 (1976).
184. As Ruth Gavison puts it: "Privacy also functions to promote liberty in ways that enhance the capacity of individuals to create and maintain human relations of different intensities. Privacy enables individuals to establish a plurality of roles and presentations to the world." Ruth Gavison, Privacy and the Limits of Law, 89 YALE LJ. 421, 450 (1980).
185. Reiman, supra note 130, at 33.
186. Axel Honneth, developing an intersubjective basis for morality built on the imperatives of mutual recognition, considers: "Through our acts of affection, we encourage another person to open himself or herself up to us emotionally in such a way that he or she is rendered so vulnerable as to deserve, instead of mere moral respect, all the benevolence we can muster." AXEL HONNETH, DISRESPECT: THE NORMATIVE FOUNDATIONS OF CRITICAL THEORY 178 (2007).
187. See, e.g., SUSAN MOLLER OKIN, JUSTICE, GENDER, AND THE FAMILY (1989).
188. Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 19-21 (1988).
189. See Ethan J. Leib, Friendship & the Law, 54 UCLA L. REV. 631, 665 (2007) (arguing that "[t]he law makes possible and structures friendships, whether it does so consciously or not").
190. See generally ARISTOTLE, NlCOMACHEAN ETHICS boob viii-ix (Terence Irwin trans., 1985);.
191. ALASDAIR MAClNTYRE, AFTER VIRTUE 155 (2d ed. 1984) ("The type of friendship which Aristotle has in mind is that which embodies a shared recognition of and pursuit of a good. It is this sharing which is essential and primary to the constitution of any form of community, whether that of a household or that of a city.").
192. Leib, supra note 135, at 654.
193. See id.; Ethan J. Leib, Friends as Fiduciaries, 86 WASH. U. L. REV. 665 (2009).
194. Lawrence v. Texas, 539 U.S. 558, 567 (2003).
195. Robert Post argues that when we dress up privacy in the language of autonomy, we "miss the plain fact that privacy is for us a living reality only because we enjoy a certain kind of communal existence." Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 CAL L. REV. 957, 1010 (1989).
196. 381 US. 479 (1965).
197. Lawrence, 539 U.S. at 575.
198. Id. at 567.
199. See, e.g., ERWIN STRAUS, The Upright Posture, in PHENOMENOLOGICAL PSYCHOLOGY: THE SELECTED PAPERS OF ERWIN W. STRAUS 139 (Erling Eng trans., 1966) ("Upright posture pre-establishes a definite attitude toward the world; it is a specific mode of being-in-the-word.").
200. see also Erving Gofrman, The Interaction Order, 48 AM. SOCIOLOGICAL. Rev. 1, 4(1983) ("By definition, we can participate in social situations only if we bring our bodies and their accoutrements along with us, and this equipment is vulnerable by virtue of the instrumentalities that others bring along with their bodies.").
201. See M. MERLEAU-PONTY, PHENOMENOLOGY OF PERCEPTION 346-65 (Colin Smith trans., 1962).
202. PLATO, PHAEDRUS (Alexander Nehamas & Paul Woodruff trans.), in PLATO: COMPLETE WORKS (John M. Cooper ed., 1997).
203. see, e.g., ERVING GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE (1973).
204. MARK JOHNSON, THE BODY IN THE MIND: THE BODILY BASIS OF MEANING, IMAGINATION, AND REASON (1987).
205. MARTHA C. NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME, AND THE LAW (2004).
206. Lawrence v. Texas, 539 U.S. 558, 567 (2003).
207. CHARLES TAYLOR, PHILOSOPHICAL ARGUMENTS 171 (1995).
208. TAYLOR, supra note 79, at 15.
209. Jean-Paul Sartre argues that one's whole orientation to the world changes when one becomes the object of another's look: "If someone looks at me, I am conscious of being an object." JEAN-PAUL SARTRE, BEING AND NOTHINGNESS 363 (Hazel E. Barnes trans., 1956).
210. Id. at 347.
211. SEE AXEL HONNETH, THE STRUGGLE FOR RECOGNITION: THE MORAL GRAMMAR OF SOCIAL CONFLICTS 92 (Joel Anderson trans., Polity Press 1995) ("(T]he reproduction of social life is governed by the imperative of mutual recognition, because one can develop a practical relation-to-self only when one has learned to view oneself, from the normative perspective of one's partners in interaction, as their social addressee.").
212. The State can dominate shared spaces, the public sphere, in greater or lesser ways. See ERVTNG GOFFMAN, ASYLUMS 23-32 (1961).
213. Invading spaces in which we engage in our most embodied activities is central to our understanding of privacy. "Certainly in common usage a basic meaning of privacy is that of a private space, like a bathroom or a home, from which others may be excluded." Post, supra note 139, at 971.
214. See generally Kyllo v. United States, 533 U.S. 27 (2001).
215. Lawrence v. Texas, 539 U.S. 558, 578 (2003).
216. Laurence Tribe argues: The 'liberty' of which the Court spoke was as much about equal dignity and respect as it was about freedom of action-more so, in fact. and the Court left no doubt that it was protecting the equal liberty and dignity not of atomistic individuals torn from their social contexts, but of people as they relate to, and interact with, one another. Tribe, supra note 34, at 1898.
217. The social act of defining sexuality is one fraught with difficulty, as many others have argued. SEE MICHEL FDUCAULT, THE HISTORY OF SEXUALITY, VOL 1: AN INTRODUCTION (Robert Hurley trans., 1978). Legal rules treating sexuality are also sometimes vexed.
218. See Zachary Kramer, Heterosexuality and Tide VII, 103 NW. U. L. REV. 205 (2009) (arguing that courts have read Title VII from a heteronormative perspective).
219. Dignity has not played as prominent a role in American constitutional thinking. It is a cornerstone, however, of international human rights. Article 1 of the Universal Declaration of Human Rights, for example, provides: "All human beings are bom free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." Universal Declaration of Human Rights, G.A. Res. 217A (III), art. 1, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 12, 1948);.
220. see also Christopher McCrudden, Human Dignify and Judicial Interpretation of Human Rigits, 19 EUR. J. INTl. L. 655, 679-SO (2008) (developing conception of a minimum content for "human dignity"); Whitman, supra note 111.
221. Lawrence, 539 U.S. at 567.
222. Whitman, supra note 111, at 1221.
223. Stanley v. Georgia, 394 U.S. 557, 564 (1969) ("For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy.").
224. 410 U.S. 113(1973).
225. 389 US. 347 (1967).
226. 505 U.S. 833 (1992).
227. Id. at 901.
228. Id.
229. See JACQUES DERRIDA, LIMITED INC (1988). Of course, I don't mean to suggest that clarifications and further reiterations are not possible,.
230. see, e.g., H.P. Grice, Meaning, 66 PHIL. REV. 377 (1957), but simply that in circulating meanings tied to practices that exceed anything private and particular to me, I must always express myself through publicly available modes of expression that exceed my control.
231. See, e.g., J.L AUSTIN, HOW TO Do THINGS WITH WORDS (1962).
232. STANLEY CAVELL, MUST WE MEAN WHAT WE SAY? 42 (1976).
233. See AUSTIN, supra note 168, at 14.
234. Hoffa v. United States, 385 U.S. 293 (1966).
235. United States v. White, 401 U.S. 745, 751 (1971).
236. See Smith v. Maryland, 442 U.S. 735, 741-42 (1979) (conveying telephone pen register information to police)
237. United States v. Miller, 425 U.S. 435, 443 (1976) ("The Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.").
238. See Tracey L. Meares & Dan M. Kahan, The Wages of Antiquated Procedural Thinking: A Critique of Chicago v. Morales, 1998 U. CHI. LEGAL F. 197, 211;.
239. Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities and the New Policing, 97 COLUM. L. REV. 551, 575-78(1997).
240. See, e.g., United States v. Lee, 274 U.S. 559, 563 (1927) (relying on public exposure of cans of alcohol on deck of a boat).
241. see also Aya Gruber, Garbage Pails and Puppy Dog Tails: Is That What Katz Is Made Of?, 41 U.C. DAVIS L. REV. 781, 799 (2008) (arguing that instead of discussing privacy in terms of society's actual beliefs about what is shielded from public viewing, the Supreme Court has "basically held that the remote possibility of disclosure renders unreasonable an individual's privacy expectations").
242. Bridget Mallon, Comment, "Every Breath You Take, Every Move You Make, I'D Be Watching You": The Use of Face Recognition Technology, 48 VlLL. L. REV. 955, 977 (2003) (opining that facial recognition technology does not constitute an invasion of privacy because "[m]ost Americans are not, and may never be, ready to accept that an individual can expect to maintain his or her privacy when he or she is in public").
243. See, e.g., United States v. Miller, 425 U.S. 435, 442-43 (1976).
244. Katz v. United States, 389 U.S. 347, 351-52 (1967).
245. 389 U.S. 347.
246. Id. at 351-52.
247. Justice Harlan, writing in concurrence, stated the rule the Court has followed as "a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" Id. at 361 (Harlan, J., concurring).
248. See California v. Greenwood, 486 U.S. 35, 44-45 (1988).
249. "[O]pen fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields." Oliver v. United States, 466 U.S. 170, 179 (1984). Similar reasoning applies to state officers occupying fixed wing aircraft,.
250. see California v. Ciraolo, 476 U.S. 207 (1986), and helicopters,.
251. see Florida v. Riley, 488 U.S. 445 (1989), in order to view property from die airspace above. One knowingly exposes one's backyard activities to aerially positioned state officers. Outside the curtilage of the home, government agents' ability to conduct aerial surveillance is not limited by the Fourth Amendment.
252. See Dow Chem. Co. v. United States, 476 U.S. 227, 237 (1986) (u[W]e find it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened.").
253. United States v. Knotts, 460 U.S. 276, 281-82 (1983) (noting that when the defendant "traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling 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").
254. See Riley, 488 U.S. at 445.
255. See United States v. Dunn, 480 U.S. 294, 304-05 (1987) (concluding that peering into a barn outside the curtilage of the house in open fields does not constitute a search).
256. 184- See Horton v. California, 496 U.S. 128, 136 (1990) ("It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.").
257. Arizona v. Hicks, 480 U.S. 321 (1987) (articulating the "plain view" standard).
258. Much Fourth Amendment doctrine derives from considering whether a police officer had the requisite justification for looking at particular items, such as the contents of a crumpled cigarette pack, see United States v. Robinson, 414 U.S. 218, 236 (1973), or inside a paper bag on a car floorboard,.
259. see Florida v. Jimeno, 500 U.S. 248 (1991). Even when officers illegally trespass on private property, their actions do not necessarily violate a constitutionally recognized expectation of privacy.
260. See Oliver, 466 U.S. at 178 ("[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home" even when police trespass on the fields).
261. See, e.g., California v. Ciraolo, 476 U.S. 207, 213-14 (1986) ("Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed.").
262. See Illinois v. Caballes, 543 U.S. 405 (2005).
263. United States v. Place, 462 U.S. 696, 707 (1983) (reasoning that "the canine sniff is sui generis").
264. 462 U.S. 696 (1983).
265. Id. at 707.
266. See Albert W. Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. ILL. U. L. REV. 1, 32 n.94 (1983) ("[T]he fourth amendment creates no right to share information with all the world save governmental officers.").
267. Lewis v. United States, 385 U.S. 206 (1966).
268. Hoffa v. United States, 385 U.S. 293 (1966).
269. United States v. White, 401 U.S. 745 (1971).
270. see also Lopez v. United States, 373 U.S. 427 (1963).
271. On Lee v. United States, 343 U.S. 747 (1952).
272. 385 US. 293.
273. Id. at 303.
274. Id. at 300-03.
275. Lewis v. United States, 385 U.S. 206, 210-11 (1966).
276. white, 401 U.S. at 752.
277. 401 U.S. 745.
278. Id. at 762-63 (Douglas, J., dissenting).
279. See William C. Heffernan, Fourth Amendment Privacy Interests, 92 J. CRIM. L. & CRIMINOLOGY 1, 38 (2001) (noting that under the Court's privacy expectation, "even the slightest exposure of an item to the public can defeat a privacy claim").
280. United States v. Jacobsen, 466 U.S. 109, 117 (1984) (holding that there is no privacy in a shared footlocker).
281. See Florida v. Jimeno, 500 U.S. 248, 252 (1991) ("A suspect may of course delimit as he chooses the scope of the search to which he consents. But if his consent would reasonably be understood to extend to a particular container, die Fourth Amendment provides no grounds for requiring a more explicit authorization.").
282. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
283. Florida v. Bostick, 501 U.S. 429, 434 (1991).
284. See, e.g., United States v. Cruz-Mendez, 467 F.3d 1260, 1265-66 (10th Or. 2006) (rejecting claim that consent was necessarily coerced when multiple officers were present, asked about immigration status, and said they would get a search warrant).
285. United States v. Snype, 441 F.3d 119 (2d Cir. 2006) (affirming valid consent after SWAT team forcibly entered residence, raised possibility of taking child, and then asked for permission to search home).
286. United States v. Smith, 973 F.2d 1374 (8th Cir. 1992) (finding valid consent when officers met wife at door with weapons drawn, asked if husband was inside, and "asked" to come inside).
287. United States v. Gilbert, 829 F. Supp. 900 (ED. Mich. 1993) (affirming valid consent when agents arrested defendant in bedroom, handcuffed him, took him to another room, and then asked permission to search home).
288. Tracey Maclin, "Black and Blue Encounters"-Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 VAL. U. L. REV. 243, 272 (1991).
289. see also DAVID COLE, NO EQUAL JUSTICE 31 (1999) ("Because a consent search requires no objective individualized suspicion, it is more likely to be directed at poor young black men than wealthy white elderly women.").
290. Tracey Maclin, The Decline of the Right of Locomotion: The Fourth Amendment on the Streets, 75 CORNELL L. REV. 1258, 1306 (1990) ("[V]ery few persons will have the moxie to assert their fourth amendment rights in the face of police authority.").
291. Two key Supreme Court cases featuring contested consent searches include: United States v. Drayton, 536 U.S. 194 (2002) (holding that officers do not have an obligation to inform citizens that they do not have to consent to a requested search of their possessions),.
292. Bostick, 501 U.S. at 436 (holding that voluntary consent is determined by "whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter").
293. See also California v. Hodari D, 499 U.S. 621, 628 (1991) (holding a seizure does not occur where a reasonable person would feel free "to disregard the police and go about his business").
294. Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 SUP. CT. REV. 153, 205 (discussing psychological studies that find that "people who are targeted for a search by police and informed that they have a right to refuse nonetheless feel intense pressure to comply and feel that refusal is not a genuine option").
295. See William J. Stuntz, The Distribution of Fourth Amendment Privacy, 67 GEO. WASH. L. REV. 1265, 1266 (1999) ("Privacy, in Fourth Amendment terms, is something that exists only in certain types of spaces; not surprisingly, the law protects it only where it exists. Rich people have more access to those spaces than poor people; they therefore enjoy more legal protection.").
296. See Ohio v. Robinette, 519 U.S. 33, 40 (1996) (describing how officer who gained consent in contested search requested consent to search vehicles in 786 traffic stops in one year alone).
297. There are limits, however, as to who is understood to have sufficient authority to consent to a search. A hotel clerk, for example, does not have authority to consent to a search of a guest's hotel room. See Stoner v. California, 376 U.S. 483, 488 (1964).
298. United States v. Jeffers 342 U.S. 48 (1951). Nor does a landlord have authority to consent to a search of a tenant's home.
299. See Chapman v. United States, 365 U.S. 610, 616-18 (1961).
300. Smith v. Maryland, 442 U.S. 735, 743 (1979).
301. Id.
302. "The cases and literature on search and seizure, and to a lesser extent on self-incrimination, routinely emphasize the individual's ability to keep some portion of his life secret, at least from the government." William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 MICH. L. REV. 1016, 1016 (1995).
303. Smith, 442 U.S. at 744.
304. "[U]nless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance. It is idle to speak of'assuming* risks in contexts where, as a practical matter, individuals have no realistic alternative." Id. at 750.
305. (Marshall, J., dissenting) (citation omitted). One could add: 'To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication." Katz v. United States, 389 U.S. 347, 352 (1967).
306. United States v. Miller, 425 U.S. 435, 443 (1976) (applying assumption of risk for information found on loan applications).
307. see also United States v. Payner, 447 U.S. 727 (1980).
308. See SLOBOGIN, supra note 4.
309. Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 MINN.LREV. 1137, 1177-79, 1185 (2002).
310. Consent plays a central role in mediating the State's involvement in undercover informant, third party or false friend cases. See Kerr, supra note 4.
311. 394 US. 731 (1969).
312. Id. at 740.
313. Schneckloth v. Bustamonte, 412 U.S. 218, 245 (1973).
314. See, e.g., Wilson v. Layne, 526 U.S. 603, 610 (1999) (referring to the "centuries-old principle of respect for the privacy of the home").
315. Payton v. New York, 445 U.S. 573, 601 (1980) (stressing "the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic").
316. Payton, 445 U.S. at 589.
317. see also United States v. Karo, 468 U.S. 705, 714 (1984) ("[T]he individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.").
318. (1763) 98 Eng. Rep. 489 (C.P.) (noting successful suit for trespass for King's officers' search of home for personal books and papers).
319. Entick v. Carrington, (1765) 95 Eng. Rep. 807 (K.B.).
320. see also Boyd v. United States, 116 U.S. 616, 630 (1886) ("It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property.").
321. Kyllo v. United States, 533 U.S. 27, 40 (2001).
322. Georgia v. Randolph, 547 U.S. 103, 134 (2006) (Roberts, C.J., dissenting).
323. 415 U.S. 164(1974).
324. Id. at 166, 179.
325. Id.
326. Id. at 171.
327. 394 US. 731, 740 (1969).
328. See, e.g., Moore v. Andreno, 505 F.3d 203 (2d Cir. 2007) (finding that society would not expect a girlfriend to have authority to consent to search of her boyfriend's study where she cut lock to gain access and told officers she was not allowed in the room).
329. United States v. Rosario, 962 F.2d 733, 738 (7th Cir. 1992) (holding that though police knew person who answered door was not person who rented motel room, consent valid because person who answered door gestured for them to come in and acted as if he were "keeper of the door").
330. Matlock, 415 U.S. at 171 n.7.
331. By contrast, Justice Jackson cautioned, "The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance." Johnson v. United States, 333 U.S. 10, 14 (1948).
332. Matlock, 415 U.S. at l70.
333. Georgia v. Randolph, 547 U.S. 103, 134 (2006) (Roberts, CJ., dissenting) (internal quotation marks omitted).
334. 547 US. 103.
335. Id. at 120.
336. Id. at 121 ("[I]f a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search.").
337. Id.
338. Jonathan Simon argues that what is distinctive about Katz, and what Fourth Amendment jurisprudence since Katz has not fully appreciated, is "the degree to which 'the social' should enter into the consideration of the specific boundary of constitutional protections, " in order "to imagine the social significance of the key aspects of a challenged police practice." Jonathan Simon, Katz at Forty: A Sociological Jurisprudence Whose Time Has Come, 41 U.C. DAVIS L. REV. 935, 944 (2008).
339. See Randolph, 547 U.S. at 109-10.
340. Id. at 113 ("Without some very good reason, no sensible person would go inside under those conditions.").
341. Id. at 114 ("[T]here is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another, whetiier the issue is the color of the curtains or invitations to outsiders.").
342. Id. at 142 (Roberts, C.J., dissenting).
343. Id. at 131 (internal quotation marks omitted).
344. Id. Sharing also produces risks when the relationship on which the sharing was based ends. See Illinois v. Rodriguez, 497 U.S. 177 (1990) (holding that a search reasonable where former a girlfriend retained a key to her boyfriend's apartment).
345. Because Mr. Rodriguez was imperfect in his exercise of control over his private space-Ms. Fischer had a key, even if she did not have authority to admit guests-the State was allowed to exploit the vulnerability that arises from this imperfection. Id.
346. 525 US. 83 (1998).
347. Id. at 88.
348. Id.
349. Id. at 89.
350. 495 U.S. 91 (1990).
351. Id. at 98.
352. Rakas v. Illinois, 439 U.S. 128, 135(1978).
353. Olson, 495 U.S. at 99 ("The houseguest is there with the permission of his host, who is willing to share his house and his privacy with his guest.").
354. Carter, 525 U.S. at 90-91. Courts have grappled with how to apply the temporal and affective limitations on which social guests get Fourth Amendment protection.
355. See, e.g., United States v. Williams, 521 F.3d 902, 906 (8th Cir. 2008) (holding that "mere visitors" to another's hotel room have no reasonable expectation of privacy).
356. United States v. Gray, 491 F.3d 138 (4th Cir. 2007) (elaborating that privacy expectations in a commercial setting are less than those of a private, residential setting, and a business guest has less privacy than a social guest).
357. United States v. Rhiger, 315 F.3d 1283 (10th Cir. 2003) (holding that defendant had reasonable expectation of privacy as a social guest in home, which was actually a meth lab, because he knew the owner for two weeks, stayed overnight when he was too drunk to drive, and would enter unannounced to take naps).
358. United States v. Heath, 259 F3d 522 (6th Cir. 2001) (affirming that defendant had legitimate expectation of privacy in cousin's apartment because he slept there occasionally, he had a key, and he had been accepted into cousin's household).
359. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
360. Georgia v. Randolph, 547 U.S. 103, 111 (2006).
361. Carter, 525 U.S. at 108 (Ginsburg, J., dissenting).
362. see also Gerald G. Ashdown, The Fourth Amendment and the "Legitimate Expectation of Privacy", 34 VAND. L. REV. 1289, 1321 (1981).
363. Eulis Simien Jr., The Interrelationship of the Scope of the Fourth Amendment and Standing to Object to Unreasonable Searches, 41 ARK. L. REV. 487, 539 (1988).
364. Carter, 525 U.S. at 107 (Ginsburg, J., dissenting).
365. Mary Coombs articulates the problem well: "Its background assumption is one of radical individualism rather than one of shared access, trust, and concern. It assumes, absent explicit proof to the contrary, that people do not share. The Court is thus blind to much day-to-day human interac-tion, and its jurisprudence ignores concerns that grow out of relationships but are not readily articulated." Coombs, supra note 5, at 1631 (citations omitted).
366. James Boyd White, The Fourth Amendment as a Way of Talking About People: A Study of Robinson and Matlock, 1974 SUP. Cr. REV. 165, 217.
367. United States v. White, 401 U.S. 745, 786 (1971) (Harlan, J., dissenting).
368. see also Smith v. Maryland, 442 U.S. 735, 750 (1979) (Marshall, ]., dissenting) ("[W]hether privacy expectations are legitimate... 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.").
369. Christopher Slobogin, in a similar vein, writes: "Assumption-of-risk reasoning in this context is vacuous, however. We only assume the risks of unregulated government intrusion that the courts tell us we have to assume." SLOBOGIN, supra note 4, at 66.
370. Georgia v. Randolph, 547 U.S. 103, 133 (2006) (Roberts, C.J., dissenting).
371. 539 US. 558 (2003).
372. 530 US. 640 (2000).
373. Fourth Amendment privacy is also in significant tension with First Amendment protection for free speech necessary for realizing our public, political lives. See Daniel J. Solove, The First Amendment as Criminal Procedure, 82 N.Y.U. L. REV. 112 (2007).
374. Minnesota v. Carter, 525 U.S. 83, 88 (1998).
375. Randolph, 547 U.S. at 128 (Roberts, C.J., dissenting) (emphasis omitted).
376. Id. at 135.
377. Osborn v. United States, 385 U.S. 323, 343 (1966) (Douglas, J., dissenting).
378. 385 U.S. 293 (1966).
379. Osborn, 385 U.S. at 343 (Douglas, J., dissenting). Justice Douglas also notes that police have been employing peepholes in men's bathrooms and working men's rooms to solicit homosexuals. Id. at 342-43.
380. see David Alan Sklansky, "One Tram May Hide Another": Katz, Stonewall, and the Secret Subtext of Criminal Procedure, 41 U.C. DAVIS L. REV. 875, 880 (2008) ("Homosexuality and its policing... were an important part of the background against which the Court constructed the modem constitutional law of the criminal process.").
381. Osborn, 385 U.S. at 354 (Douglas, J., dissenting).
382. 525 US. 83 (1998).
383. Id. at 102 (Kennedy, J., concurring).
384. Id.
385. Lloyd Weinreb comments that "the decision in Carter is possibly the most clearly mistaken and the underlying jurisprudence the most inadequate of all the cases decided under the Fourth Amendment in the past thirty years." Lloyd L. Weinreb, Your Place or Mine.' Privacy of Presence Under the Fourth Amendment, 1999 SUP. CT. REV. 253, 256.
386. Id. at 267.
387. Id.; see also Coombs, supra note 5.
388. But see SLOBOGIN, supra note 4, at 112-17 (implementing empirical study to assess society's expectations of privacy).
389. See, e.g., GEORGE HERBERT MEAD, MIND, SELF AND SOCIETY (1934).
390. See Coombs, supra note 5, at 1635 ("A view of the world that recognizes the essential interconnectedness of people and the importance of intimacy and sharing is foreign to the atomistic social theory underlying the Court's present doctrine.").
391. See Georgia v. Randolph, 547 U.S. 103, 128 (2006) (Roberts, C.J., dissenting).
392. Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 784 (1989).
393. United States v. White, 401 U.S. 745, 787 (1971) (Harlan, J., dissenting).
394. HANNAH ARENDT, BETWEEN PAST AND FUTURE 149 (1968).
395. HANNAH ARENDT, ON REVOLUTION 31 (1963).
396. United States v. White, 401 U.S. 745, 762 (1971) (Douglas, J., dissenting).
397. Arendt refers to this condition as "natality." HANNAH ARENDT, THE HUMAN CONDITION 9 (1958).
398. "Our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present." White, 401 U.S. at 786.
399. 530 US. 640 (2000).
400. See Michael Birnbaum, The Profile Police, Campus Officers Cruise Facebook, MySpace for Clues to School-Related Crimes, to Some Students' Chagrin, WASH. POST, Apr. 6, 2009, at A01.
401. Amber Hunt, Detroit Cops to Use Twitter, MySpace, DETROIT FREE PRESS, May 14, 2009, at 17;.
402. Julie Masis, Predators Beware: Face on MySpace May Be Police Decoy, BOSTON GLOBE, Feb. 8, 2009, at Reg3.
403. It is also itself a source of considerable content about her life, especially if her phone is an iPhone containing email, pictures, and electronic documents. For consideration of the Fourth Amendment implications of police searches of cell phone content pursuant to searches incident to arrest, see Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. REV. 27 (2008).
404. See United States v. Forest, 355 F.3d 942, 949-50 (6th Cir. 2004) (stating that cell site data is not a Fourth Amendment violation unless the defendant's phone is located somewhere where the defendant has an expectation of privacy);.
405. In re the Matter of the Application of the United States for an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, 534 F. Supp. 2d 585, 613 (W.D. Pa. 2008) ("[W]ithout a warrant based on probable cause the Government may use a tracking device to ascertain an individual's location on a public highway but not in a private home-").
406. In re Application of United States for an Order for Prospective Cell Site Location Info, on a Certain Cellular Tel., 460 F. Supp. 2d 448, 462 (S.D.N.Y. 2006) (supporting the proposition that the government could run afoul of the Karo Rule (monitoring of a beeper in a private residence with no visual surveillance violates the Fourth Amendment), by using cell site information to conduct surveillance of a target in a private home that could not be observed from public spaces). Courts have also confronted suppression motions from government agents' use of cell cite information in unpublished opinions.
407. United States v. Skinner, No. 3: 06-CR-100, 2007 WL 1556596 (ED. Term. May 24, 2007).
408. United States v. Bermudez, No. IP 05-43-CR-B/F, 2006 WL 3197181, (S.D. Ind. June 30, 2006).
409. See David Cole, Hanging With the Wrong Crowd: Of Gangs, Terrorists, and the Right of Association, 1999 SUP. CT. REV. 203, 205 (arguing that guilt by association "erode[s] constitutional protection of the right of association, and warrant[s] a reconsideration of the right's purpose in a democratic society").
410. see also Katherine J. Strandburg, Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance, 49 B.C. L. Rev. 741 (2008) (discussing government use of "relational surveillance" to monitor social networks).
411. See Rente McDonald Hutchins, Tied Up In Knotts? GPS Technology and the Fourth Amendment, 55 UCLAL. Rev. 409 (2007).
412. See United States v. Karo, 468 US. 705 (1984).
413. United States v. Knotts, 460 U.S. 276, 283-84 (1983).
414. In re United Slates, 534 F. Supp. 2d at 613 ("[W]ithout a warrant based on probable cause the Government may use a tracking device to ascertain an individual's location on a public highway but not in a private home-").
415. 389 U.S. 347 (1967).
416. Id.
417. See Rakas v. Illinois, 439 U.S. 128 (1978).
418. Writing in dissent in United States v. White, Justice Douglas warned of the kind of problem cell cite tracking creates, asserting that the concepts of privacy which the Founders enshrined in the Fourth Amendment vanish completely when we slavishly allow an all-powerful government, proclaiming law and order, efficiency, and other benign purposes, to penetrate all the walls and doors which men need to shield them from the pressures of a turbulent life around them.
419. US. 745, 756 (1971) (Douglas, J., dissenting).
420. 539 US. 558 (2003).
421. Roberts v. U.S. Jaycees, 468 U.S. 609, 619 (1984).
422. Lawrence, 539 U.S. at 578.
423. See Gitlow v. New York, 268 U.S. 652, 672-73 (1925) (Holmes, J., dissenting).
424. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
425. see also Whitney v. California, 274 U.S. 357, 372 (1927) (Brandeis, J, concurring).
426. See Minnesota v. Carter, 525 U.S. 83, 106-09 (1998) (Ginsburg, J., dissenting).
427. White, 401 U.S. at 768-69 (Harlan, J., dissenting).
428. Osborn v. United States, 385 U.S. 323, 340 (1966) (Douglas, J., dissenting).
429. 116 U.S. 616 (1886).
430. Id. at 630.
431. Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
432. Griswold v. Connecticut, 381 U.S. 479 (1965).
433. See infra Part I.
434. On the importance of the intergenerational constitutional project, see Bruce Ackerman, The Living Constitution, 120 HARV.L. REV. 1737 (2007).
435. Arguing that the Fourth Amendment text specifically provides for a "right of the people to be secure" in their houses, persons and belongings, Rubenfeld concludes that the focus on privacy has obscured the Fourth Amendment's "distinctive political valence." Rubenfeld, supra note 20, at 117.
436. Moreover, he argues that Fourth Amendment jurisprudence should focus on the right to security, which the constitutional text explicitly protects. The Fourth Amendment harm to be avoided "is the stifling apprehension and oppression that people would justifiably experience if forced to live their personal lives in fear of appearing 'suspicious' in the eyes of the state." Id. at 127.
437. That political valence secures shared personal life from state domination. Security, however, is not an end in itself, related though it may be to protecting features of ordinary life. Security is above all valued for its relation to the Constitution's commitment to "secure the blessings of liberty." U.S. OONST., pmbl. The Preamble makes clear that security is a value related to liberty, not just of the individual, but to "ourselves and our Posterity." Id.
438. Palko v. Connecticut, 302 U.S. 319, 325 (1937).
439. Powell v. Alabama, 287 U.S. 45, 67 (1932).
440. See, e.g., Duncan v. Louisiana 391 U.S. 145(1968)(holding that the Sixth Amendment right to jury trial applies to states).
441. Malloy v. Hogan, 378 U.S. 1 (1964) (holding that the Fifth Amendment right to be free from compelled self-incrimination applies to states).
442. Mapp v. Ohio, 367 U.S. 643, 655 (1961) (internal quotations omitted).
443. Lawrence v. Texas, 539 U.S. 558, 562 (2003) (emphasis added).
444. Id.
445. For a systematic exploration of the ways criminal law privileges and punishes individuals based on their family status, see DAN MARKEL, JENNIFER M. COLUNS & ETHAN J. LEIB, PRIVILEGE OR PUNISH: CRIMINAL JUSTICE AND THE CHALLENGE OF FAMILY TIES (2009).
446. See Upjohn v. United States, 449 U.S. 383, 389 (1981) (recognizing the need for "full and frank communication between attorneys and their clients").
447. See Trammel v. United States, 445 U.S. 40, 44 (1980) ("The modern justification for this privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship.").
448. See Sanford Levinson, Testimonial Privileges and the Preference of Friendship, 1984 DUKEL J. 631, 645 ("If we are so willing to recognize the importance of intimate relationships when they are spousal, why not recognize them in other contexts as well, such as those between lovers, friends, or family?").
449. 401 U.S. 745 (1971).
450. Id. at 786 (Harlan, J., dissenting).
451. See, e.g., id. at 749 (majority opinion) ("[I]nescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police.").
452. Others have argued that the Court should broaden its definition of searches so as to bring more police conduct within the Fourth Amendment. See Brian J. Serr, Great Expectations of Privacy: A New Model for Fourth Amendment Protection, 73 MINN. L. REV. 583 (1989).
453. Stuntz, supra note 213, at 1056 (noting that "consistent privacy protection requires a much broader definition of Fourth Amendment searches than the Court has adopted").
454. See Mincey v. Arizona, 437 U.S. 385, 390 (1978).
455. See Terry v. Ohio, 392 U.S. 1 (1968).
456. It is likely, under this approach, that there would be a growth in special-needs claims-a prospect that regulates police actions according to a Fourth Amendment standard, rather than concluding that no search occurred in the first place. See, e.g., Illinois v. Lidster, 540 U.S. 419, 427-28 (2004) (checkpoint for information gathering).
457. Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990) (highway sobriety checkpoints).
458. United States v. Martinez-Fuerte, 428 U.S. 543, 545, 551-53 (1976) (searches near the Mexican border).
459. 547 U.S. 103 (2006).
460. Id. at 137 (Roberts, C.J., dissenting).
461. Id. at 106-23 (majority opinion).
462. Id. at 135 (Roberts, C.J., dissenting).
463. Id. at 120 (majority opinion).
464. 415 US. 164(1974).
465. Id. at 171.
466. See United States v. Henry, 447 U.S. 264 (1980).
467. Massiah v. United States, 377 U.S. 201 (1964).
468. See Kuhlmann v. Wilson, 477 U.S. 436 (1986).
469. 525 U.S. 83 (1998).
470. Id. at 99 (Kennedy, J., concurring).
471. Id.
472. Id. at 102.
473. Id.
474. 539 U.S. 558 (2003).
475. See, e.g., Mincey v. Arizona, 437 US. 385 (1978).
476. Carter, 525 U.S. at 108 (Ginsburg, J., dissenting).
477. 497 US. 177(1990).
478. Id. at 183.
479. 385 US. 206 (1966).
480. 385 US. 293 (1966).
481. California v. Acevedo, 500 U.S. 565, 601 (1991) (Stevens, J., dissenting).
482. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 12 (1980).
483. 539 U.S. 558 (2003).
484. Id. at 562.
485. Kyllo v. United States, 533 U.S. 27, 40 (2001).
486. Lawrence, 539 U.S. at 578.