Striking Down Katz: An Original(ist) Take on the Fourth Amendment

-- By SherwinNam - 10 Mar 2020

Introduction

The Supreme Court in Katz v. United States, 389 U.S. 347 (1967), extended Fourth Amendment protection to conversations in enclosed phone booths despite a lack of any physical intrusion into that space. While Justice Stewart's opinion garnered the majority vote, Justice Harlan's concurrence set forth the "reasonable expectation of privacy" standard that courts have applied the last 53 years.

Katz appeared to have abrogated the traditional property test exemplified in Olmstead v. United States, 277 U.S. 438 (1928), where the Court held that the government's warrantless use of wiretaps to record phone conversations did not violate the Fourth Amendment. The Court reasoned that because "[t]here was no entry of the houses or offices of the defendant[,]" the government did not in fact search or seize the defendant's property or his person. Simply put, because the government did not trespass onto the defendant's property, it did not search or seize for purposes of the Fourth Amendment. However, in United States v. Jones, 565 U.S. 400 (2012), the Court clarified that "the Katz [standard] added to, not substituted for, the common-law trespassory test." Thus, both the Katz standard and the property-based rule remain applicable in Fourth Amendment analyses.

The Problem with Katz

Necessitating Unpredictable Exceptions

A Katz test asks two questions. First, did the defendant have an expectation of privacy in the acquired information? Second, is the defendant's expectation one that society would be prepared to recognize as reasonable? Commentators have framed the first prong as a subjective test whereas the second prong is an objective one. As the Court has recognized, "no single rubric definitively resolves which expectations of privacy" are reasonable. A court must balance competing interests, securing the privacies of life against prying government eyes through the use of advancing surveillance technologies. An adjudicator applying the objective prong of the Katz standard is left with little beyond precedent, historical and current understandings of the Fourth Amendment, and no insignificant amount of guesswork as to society's expectations of reasonableness.

The balancing test of Katz arguably necessitated unpredictable exceptions to the law like the third-party doctrine and the Court's reversal of course in Carpenter v. United States, 138 S. Ct. 2206 (2018). As Katz pushed Fourth Amendment jurisprudence away from the trespass rule of Olmstead, the Court recognized the limits of Katz reasonableness in United States v. Miller, 425 U.S. 435 (1976), and in Smith v. Maryland, 442 U.S. 735 (1979). There, the Court held that defendants relinquish any reasonable expectation of privacy in certain information held by—or given to—third parties, namely in bank and telephone records. While the third-party doctrine of Miller and Smith would strongly limit the Katz standard until Carpenter. There, the Court held that despite his careless use of location-tracking cell phones during the commission of a string of robberies, the defendant nonetheless retained a reasonable expectation of privacy in that location data.

A Self-defeating Standard

The Katz standard also flies dangerously close to circularity. A judge finding Katz reasonableness effectively reasons that "because society would accept this expectation of privacy as reasonable, the defendant's expectation is reasonable." While a number of factors would support the notion that society would accept a certain expectation of privacy as reasonable, the courts' willingness to extend Fourth Amendment protection (or not) would itself motivate the very expectations the courts purport to "find" in a Katz analysis.

Consider Carpenter, for example. There, the Court found that the defendant's expectation of privacy in his cell site location data was a reasonable one. However, before Carpenter, it was anything but clear that society would accept this expectation as reasonable. Cell phones were known as able to track user location data as early as 2004, seven years prior to the facts giving rise to Carpenter. Further, mainstream media outlets like Wired reported that the federal government was exploiting cell phones' location-tracking features—or bugs, as some might call them—in 2009, two years before Carpenter committed robberies while keeping a location-tracking device in his pocket. Despite a swell of social consciousness surrounding the surveillance capabilities of cell phones, the Court found that society would accept this expectation of privacy as reasonable. Now, despite living in a post-Snowden society where citizens consciously—and without excuse—acquiesce to third-party technology giants and government actors tracking their every move, society can now reasonably expect to keep this information from law enforcement. The Court appeared to get society's expectations wrong in Carpenter, but now, society can nonetheless reclaim that expectation of privacy, a seemingly backwards result.

Reverting to a Property-based Rule

Returning to the property-based rule of Olmstead and abandoning Katz would add an inherent predictability to Fourth Amendment analyses. Carpenter shows the Court's inability to apply Katz in a manner consistent to what the standard purports to reveal: the types of information from which society would expect the government to keep its eyes. It provides ex ante notice where a balancing test cannot: a bright-line rule—trespass or not—will clearly signal to society when and how the government would violate citizens' Fourth Amendment rights.

The traditional trespass rule is not without its difficulties. The rule may appear unsuited to a world in which personal information is held on remote servers and law enforcement can surveil from a distance without physical intrusion. However, the trespass rule can be expanded to instances where law enforcement "digitally" trespasses into a defendant's property or person. So long as the government uses sense-enhancing technology to otherwise place itself within the home or otherwise take the documents, an acquisition of information would be a search or seizure. Here, the focus would be not on arbitrary guesswork about society's expectations of privacy. Rather, its focus would on be whether the government intruded—physically or digitally—onto a person's property or the person herself. This rule, though not purely originalist, would remain far truer to original principles of the Fourth Amendment while providing uniform protection against prying government eyes.