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Private Surveillance Complicates the 4th Amendment

By Mark Wilson, Esq. | Last updated on

The Fourth Amendment prevents the government from engaging in unreasonable searches and seizures without a warrant, but what about surveillance by private actors?

Through years of torturous interpretations of that amendment, the Supreme Court has settled on a "reasonable expectation of privacy" as the lodestar for whether the government needs a warrant to search something.

The reasonableness of privacy expectation depends both on whether the person whose privacy is invaded had a subjective expectation of privacy and whether society is prepared to recognize that expectation. A straightforward rule, perhaps, but one that's subject to being contorted out of existence. For example, if someone places a sign in a public restroom that says you're being recorded, can it be said that you had a subjective expectation of privacy? It very well might, which is sort of the problem.

Mass Surveillance

One thing that the Court considered in Katz v. United States, which birthed the two-pronged reasonableness test, is whether extra-governmental influences can affect that test. Back then, the Court said, "One who occupies [a phone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world." Thanks to the ubiquity of the telephone, and its importance in commerce and daily life, it became such a necessity that not extending constitutional protection to private phone calls would have been absurd.

Technology exists today that's just as ubiquitous as the telephone was in the 1960s, but today's technology is far more amenable to surveillance than a pay phone. Each of us is surveilled every day in some fashion, whether it's physically through traffic cameras, electrically through our cellphones' GPS signals, or virtually through cookies that remember where we've been on the Internet and advertise at us accordingly.

Consequently, with all of this surveillance -- much of which we opted into -- at some point, we'll have to concede that we don't have a subjective expectation of privacy when we make phone calls, browse the Internet, or buy things at Safeway. In part, this is because of data aggregation: Companies pay data analytics firms big bucks to amass giant databases of consumer information (not all of it anonymized) and generate predictions about what consumers will want in the future in order to more effectively advertise at them.

These concerns make Justice Sotomayor's concurrence in United States v. Jones, the GPS tracking case, ever more important. In signing up for that Safeway card, we may have agreed to surveillance of discrete events, but did we sign up for a holistic, computer-driven analysis of our lives? Probably not: "I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on," Sotomayor wrote.

The fact remains, though, that such things do happen, and we know they happen. Does that knowledge mean that there's no privacy anymore?

Who Would Be Interested in Facebook, Anyway?

We can't ignore the second part of the Katz test, though. As we continue to opt-in (or fail to opt out) of different ad schemes, our norms about privacy change. Consider that, in 2010, Facebook founder Mark Zuckerberg said that constantly sharing information online was the new normal. Six years before, when the only social networks on Facebook were a few Ivy League universities, Zuckerberg said privacy, not sharing, was the norm: "When I got started in my dorm room at Harvard, the question a lot of people asked was, 'why would I want to put any information on the internet at all? Why would I want to have a website?'" he said.

If everyone is sharing everything with everyone else, then an expectation of privacy in a certain type of information is not "one that society is prepared to recognize as 'reasonable,'" in the words of Justice Harlan, whose concurrence in Katz gave us that two-pronged test. This is thanks to the "third-party doctrine," which holds that there can't be a reasonable expectation of privacy in information that's been voluntarily given to a third party -- like your purchase history.

And if everyone signs up for Safeway cards just to save a few cents on a can of beans, but fully aware that their purchase information will be collected, analyzed, and sold, it could be said that we can't expect information about what we buy at the store to be private.

Safeway Is Not the Police

Given all of this knowledge, can it truly be said that we should expect to be free from government monitoring of our email? Or that we can talk freely on the phone with the laughable naivete that no one is listening? Or that we can waltz around town with our cellphones on, even though we know that the FBI is using Stingrays to pinpoint our precise locations?

Of course not. There's certainly a difference between allowing a store to aggregate our data and allowing that permission to serve as the foundation for utilizing the state's criminal investigation power to get that information without any oversight. Put a different way, after the police look through our purchase history, they can arrest us. Safeway can't.

We don't live in a world of Manichean public and private realms anymore. Sometimes things are public, and sometimes they're private. Sometimes we let others know things for convenience -- for example, letting Yelp know where we are so we can find a restaurant -- but we don't expect that to lead to warrantless evidence in a criminal trial. The Internet hasn't just changed how we use information; it's changed how we think about information. Katz and the two-pronged test were useful once, but now they're more of a hindrance, as they were designed for a different world that lacked the instant communication and data aggregation tools we have today.

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