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The Road to Tragedy Is Paved With Reasonable Expectations

-- By TheoTamayo - 03 Mar 2024

The Constitution does not—and in its current form cannot—protect privacy in the twenty-first century. Much of this failure stems from a poverty of imagination; the provision intended to protect the right to be let alone anticipates and guards against a specific, narrow, and mostly-obsolete threat. But the inherent inadequacy of the Fourth Amendment is not predictive, but linguistic: it defines its own protections using a term that provides no objective metric with which to measure violations and weakens recursively when pressed.

Long History, Simple Sentences, Unrealized Updates

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

However, I submit that shortcomings flowing from human inability to predict the future should be understood as failures of subsequent generations to update a provision that both states a governing proposition and attempts to enforce it, rather than failures of the drafters to do the impossible. And I argue that even if subsequent Congresses had adapted the provision to reflect technological and governmental developments to the present by replacing terms that have been rendered obsolete such as “place,” “search” and “seizure,” the Fourth Amendment’s use of “reasonableness” as its lodestar would still doom it to fail to protect privacy against committed government invasion.

Reasonable Violations

The drafters wanted to create a government powerful enough to span the continent, and could not have believed that such a government would not need to be able to search and seize its citizens’ persons, houses, papers, or effects in some situations. It was inevitable that the Fourth Amendment’s protections for the right of the people to be secure would have some exceptions. But the decision to define the line between permissible and impermissible intrusions using the word “unreasonable” was a categorical and catastrophic mistake.

The term at first glance appears apt and adaptable. No American in 1789 would have considered the Writs of Assistance to have been reasonable, so stipulating that government overreaches of that sort would not be tolerated likely seemed a robustly rights-protective move. Furthermore, it is difficult to imagine other standards that the First Congress could have adopted. They had no models from which to learn and copy in designing the Constitution and the Bill of Rights, being the first legislative body claiming to derive authority from the consent of the governed. To reiterate, they also had no conception of either the threats they needed to prepare for or effective ways to do so other than the singular, rather crude example they were specifically reacting to.

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

Best Efforts

Katz v. United States’ combination of a subjective element of expectation of privacy with an objective element of whether society considers that expectation reasonable exemplifies a plainly government-suspecting interpretation of the Fourth Amendment. Katz represented a major step forward from Olmstead v. United States’ capitulation to surveillance almost four decades earlier, and Justice Stewart’s opinion valiantly tries to strike a prudent but protective balance between necessity and liberty. But Katz cannot overcome the base defect of the Amendment it interprets.

Bruce Schneier’s 2009 warning that continuing to rely on Katz’s “Expectation of Privacy” test during the information age would eventually lead to no privacy at all has proven prescient. Courts developed the Third-Party doctrine in an age of personal physical communication to provide a framework for how to diminish the expectation of privacy wherever consumers have voluntarily furnished their information. As data about human activity has exploded in volume and value, people have internalized that they can access services for free if they agree to allow those services to collect their information. The lions’ share of them have done so willingly.

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

Worst Outcomes

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

The Fourth Amendment is certainly a tragedy. It makes a noble promise that its pathetic protections cannot keep, and we are all less free because of it. I believe that the word that is currently treated as its beating doctrinal heart is responsible, and that any hope of restoring the value the amendment stands for will need to include replacing it with a term that doesn’t eat its own tail.

Fine as usual in your response-paper genre. We are agreeing on an interpretation, of course. But it seems to me that you might—as somehow I always manage to over-expect you might—want to think around rather than within the box.

Federal rules of evidence can be modified by Congress without changing either the Fourth Amendment or the Supreme Court. States can be provided with all sorts of reasons to come into alignment with federal legal process. If you knew what you wanted, getting it would be a matter of political, not constitutional, decision.

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