This article provides readers with a basic conceptual framework to serve as a launch pad from which they can enter the various areas covered by the title with a working knowledge of the case law in these areas.
Our initial question is this: What protection, if any, does the U.S. Constitution provide for the individual right to privacy? Note that, stated this way, the question accepts that there is an individual right to privacy and focuses on the scope of protection, if any, afforded by the U.S. Constitution. In the U.S. legal system, the institutional body charged with answering this question is the U.S. Supreme Court. The Court has said that the Constitution only protects the individual’s privacy against violations by governmental action (state or federal). It does not protect him or her against the actions of private individuals. ”. . . [T]he protection of a person’s general right to privacy—his right to be let alone by other people—is, like the protection of his property and his very life, left largely to the law of the individual states” (Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 576 [1967]).
How then does the Constitution protect the individual’s right to privacy against governmental action? We must look to the Court’s cases for the answer to this question. Sometimes the answer is not so clear and, on occasion, has been and continues to be controversial.
Our basic conceptual framework will be enhanced if we divide all governmental action into two categories: (1) governmental actions that involve the process of administering the laws (this includes all administering activities whether they are statutes, rules, regulations, or other activities), which we shall call procedural due process; and (2) governmental actions that regulate or prohibit conduct that is not involved with the administration of the laws; this we shall call substantive due process. An example of the first is the rules relative to the issuance and execution of a warrant. An example of the second is a law prohibiting an abortion.
The Court has recognized that the right to privacy against government interference has two zones: the spatial zone and the decisional zone (Bowers v. Hardwick, 478 U.S. 186,106 S. Ct. 2841, 92 L. Ed. 2d 140, dissenting opinion, Justice Blackman). Privacy issues in the first category usually involve the First, Fourth, Fifth, Sixth, and Eighth Amendments and the Due Process Clause of the Fourteenth Amendment but could include other amendments. Privacy issues in the second category usually involve the Due Process Clauses of the Fifth and Fourteenth Amendments but could also include other amendments.
Privacy and Procedural Due Process
In the first area we will focus on the Court’s cases interpreting the Fourth and Fourteenth Amendments. The Court has decided that the Fourteenth Amendment applies the Fourth Amendment to the states. This means that the Fourth Amendment’s requirements are, essentially, the same for the state as they are for the federal government. See Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed 1782 (1949), and Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). Note here the distinction between actual requirements of the Constitution and the Court’s use of its supervisory powers over the federal courts to promulgate desirable rules of operating the courts.
In the Fourth Amendment area, the Court has said that ”The security of one’s privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society” (see Wolf). The cases before and after Wolf struggled with efforts to give meaning to this principle in trying to decide when and under what circumstances the requirements of the Fourth Amendment’s protections come into play. Katz v. United States is the major signpost in these efforts. Here the Court rejected the locational theory of protection and held that ”. . . the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection…. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” (Katz).
Now came the task of explaining what this means and of applying it to the facts of individual cases. This has not been an easy task. The process started with the concurring opinion of Justice Harlan in Katz: ”My understanding of the rule that has emerged from prior decisions is that there is 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”’ (Katz).
The Court quickly adopted this formulation and went further by using the phrases ”legitimate expectation of privacy” and ”justifiable expectation of privacy” interchangeably with, in addition to, and, sometimes, instead of the phrase ”reasonable expectation of privacy.” The Court often also uses the phrase ”an expectation of privacy society is prepared to recognize as legitimate.” The end result seems to be a continuous stream of confusing and contradictory Court decisions severely denying Fourth Amendment protection in situations where one would expect privacy and the circumstances indicate the expectation is a reasonable one.
A review of some of the precedent cases in this area, from the last thirty years or so, indicates the problem. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 387 (1978) is a good place to start. In Rakas, petitioners were convicted of armed robbery. At their trial, the prosecution offered into evidence a sawed-off rifle and rifle shell that had been seized by police during a search of an automobile, which included the locked glove compartment and the area under the front seat in which petitioners had been passengers. The petitioners moved to suppress this evidence. Neither petitioner was the owner of the automobile and neither had ever asserted that he owned the rifle shells seized.
The Court cites, with approval, the language of Katz, and yet appears not to follow it. It stated:
The Court in Katz held that capacity to claim the protection of the Fourth Amendment depends not upon a right in the invaded space but upon whether the person who claims the protection of the Amendment has a legitimate [sic] expectation of privacy in the invaded space.” Emphasis added.
The Court then went on to hold:
[The] . . . petitioner’s claims must fail. They asserted neither a property or a possessory interest in the automobile, nor an interest in the property seized. And as we have previously indicated, the fact that they were ”legitimately on the premises” in the same sense that they were in the car with the permission of its owner is not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched. (Katz)
The Court’s recent cases indicate that the Court is more likely to find a reasonable expectation of privacy where an individual’s home is involved. See Kyllo v. United States, 553 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 94 (2001) where the Court prohibited the use of a thermal im-ager to obtain ”. . . information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’ . . . at least where, as here, the technology in question is not in general public use.”
Although it has been more protective of the home traditionally, the Court has stepped back from this position when the facts of a case permit. See California v. Carney, 471 U.S. 386 (1985), in which the Court decided to permit automobile warrantless probable searches of motor homes instead of requiring a warrant as is the rule for the traditional home. See also California v. Ciraolo, 476 U.S. 207, 106 S. Ct. 1809, 90 L. Ed. 210 (1986), in which the Court permitted police officers to conduct surveillance of the defendant’s fenced backyard from a private plane flying at an altitude of a thousand feet, even though it had two years earlier declared this area (the curtilage) to be part of the home. See Oliver v. United States, 466 U.S.170 (1984).
The reasonable expectation of privacy issue is critical because it determines when the protections of the Fourth Amendment must be enforced in specific situations. However, if the Court decides that a reasonable expectation of privacy does exist, it does not mean the government will not be able to conduct the search. It simply means that the government activity is a search within the meaning of the Fourth Amendment and must meet the requirements of the Fourth Amendment (warrant requirement, probable cause requirement, or some objective standard of reasonableness, and so on) before the search is conducted. See Payton v. New York 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 639 (1980); United States v. Place, 462 U.S. 696 (1983); Illinois v. Caballes, 125 S. Ct. 834 (2005).
The Court has addressed the ”reasonable expectation of privacy” issue extensively in many areas other than the home. In United States v. Place, supra, it saw no violation of a person’s Fourth Amendment’s privacy interest in the contents of personal luggage in permitting the temporary seizure of luggage at an airport so that it could be brought into contact with a drug detection dog.
In Illinois v. Caballes, supra, the defendant was stopped by a state for driving 71 mph on an interstate highway with a posted speed limit of 65 mph. Another trooper assigned to the Drug Interdiction Team heard a radio transmission reporting the stop and without any request immediately traveled to the scene and walked his dog around the defendant’s car while the defendant was in the patrol car awaiting a warning ticket. The dog alerted, and, in a subsequent search of the car’s trunk, marijuana was found. The Court found that ”. . . conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent’s constitutionally protected interest in privacy. Our cases hold that it did not” (Caballes, supra).
In United States v. Knotts, 460 U.S. 276 (1983) and United States v. Karo, 468 U.S. 705 (1984), the Court gave wide latitude to police use of electronic tracking to assist in their visual surveillance and tracking of a container but limited it to situations where the police would have a right to make visual observations. The Court specifically prohibited its use in the home absent a valid warrant or exigent circumstances.
In Smith v. Maryland, 442 U.S.735 (1979), the Court held ”. . . that the police did not violate the Fourth Amendment by causing a pen register to be installed at the telephone company’s offices to record the telephone numbers dialed by a criminal suspect. An individual has no legitimate expectation of privacy in the numbers dialed on his telephone . . . because he voluntarily conveys those numbers to the telephone company when he uses the telephone. Again, we observed that ‘a person has no expectation of privacy in information he voluntarily turns over to third parties.”’
In Dow Chemical Co. v United States, 476 U.S. 227 (1986), the Court held that the Environmental Protection Agency’s aerial photographing of Dow Chemical’s industrial complex was not a Fourth Amendment search. ”It may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant. But the photographs here are not so revealing of intimate details as to raise constitutional concerns.”
If the Court decides, on the facts of a case, that there is ”a reasonable expectation of privacy,” then the protections of the Fourth Amendment come into play and the Court has to decide which ones are applicable to the facts of the case. The protections include, but are not limited to, the warrant requirement, the probable cause requirement, the reasonableness requirement, the Court’s diminished or lesser expectation of privacy doctrine, and the Court’s balancing test. These are seen as methods of protecting constitutionally recognized reasonable expectations of privacy by setting standards for when the government will be able to infringe on a person’s reasonable expectation of privacy. (They are not covered in this article.) It may be argued that the last two are methods of diluting the protections. Our focus is on the Court’s decisions of what expectations of privacy will have the benefits of these methods of ”protections” and which will not.
Privacy and Substantive Due Process
In our second area of government action set out earlier, substantive due process, the cases indicate very clearly that the constitution recognizes and protects the individual’s right to privacy. The government is not free to regulate and/or prohibit any and all private conduct:
Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government. See Thornburgh v. American Coll. of Obst. & Gyn., 476 U.S. 747, 106 S. Ct. 2169, 2184, 90 L. Ed. 2d 779 (1986); Bowers v. Hardwick, 478 U.S.186, 106 S. Ct. 2841, 92 L. Ed. 2d 140, dissenting opinion, Justice Blackman.
Here we focus on the decisional zone of privacy, the right of the individual to make certain private decisions and take certain private actions in his or her life without government interference. This became explicit in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 510 (1965); however, it was also affirmed in earlier cases on freedom of association and freedom to marry outside one’s ethnic group. See NAACP v. Button, 371 U.S. 415; NAACP v. Alabama, 357 U.S. 469; and Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967). It is also generally accepted that the government may not decide what an individual’s religion will be.
In construing the right to privacy, this Court has proceeded along two somewhat distinct, albeit complementary, lines. First, it has recognized a privacy interest with reference to certain decisions that are properly for the individual to make. Second, it has recognized a privacy interest with reference to certain places without regard for the particular activities in which the individuals who occupy them are engaged. Bowers v. Hardwick, 478 U.S.186, 106 S. Ct. 2841, 92 L. Ed. 2d 140, dissenting opinion, Justice Blackman.
More recent cases indicate the continuing and growing debate over the scope of the right to privacy against government intrusion.
In Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243 (1969), the Supreme Court, Justice Marshall, held that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.
In Roe v. Wade the Court ruled that a woman’s right to privacy as protected by the due process clause of the Fourteenth Amendment gives her the right to make the decision on continuing or terminating her pregnancy during the first trimester of her pregnancy. The Court employed its three-step analysis process to arrive at its decision. This process is used when the denial of a fundamental right is claimed. Step one, what is the right claimed to have been violated? Is it a fundamental right? Step two, if it is a fundamental right, is the conduct involved encompassed by the right? Simply put, in the case of the right of privacy, is it private or public conduct? Step three, does the government have a compelling state interest in regulating or prohibiting the conduct? After reviewing the medical knowledge and the legal precedents, the Court found that the government did not have a compelling state interest that could override the woman’s right to decide until the end of the first trimester. The compelling state interest after the first trimester is the medical dangers to the woman and the state’s interest in preventing them. See Roe. V. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 147 (1973).
In Lawrence v. Texas 539 U.S. 558, 123 S. Ct. 2472 (U.S. 2003), the Supreme Court, Justice Kennedy, overruled its prior decision in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), and held that a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct was unconstitutional, as applied to adult males who had engaged in consensual act of sodomy in the privacy of home.
A wide variety of laws impinging on personal autonomy or privacy have been challenged under the due process clause, including laws prohibiting homosexuality, adultery, and cohabitation; forbidding the use of recreational drugs; imposing dress and appearance standards; and requiring motorcyclists to wear protective helmets. This is an ongoing process and promises to be a major area of development for constitutional law into the foreseeable future and beyond. See generally, Lawrence Tribe, American Constitutional Law, chap. 15 (1978), cited by Brest and Levin-son, Processes of Constitutional Decision-making, p. 683 (2d ed., 1983).
