|
Attachment B
Criticism of the Katz reasonable expectations of privacy test
By Craig Cornish
May 1, 2005 |
I. Introduction
The
Katz reasonable expectations of privacy test has implications beyond public law enforcement.[
1] It is the standard used in setting the scope of public employees, rights of privacy. The
Katz test has also creped into tort privacy law. Thus, in deciding whether to minimize, or eliminate, use of the Katz test in the tort of employee privacy, it is necessary to review
Katz and its progeny. Whether it should be used in tort law depends on how useful a tool it is for identifying when employer conduct infringes on the type of employee privacy the privacy tort seeks to protect. Because the evolution of fourth amendment jurisprudence stems mostly from law enforcement issues, it is not easy to extrapolate from those decisions to the public and private workplace issues.
[2]
Below, I will try to show that the
Katz test is hopeless at the theoretical level, has produced nothing but disarray in results on the ground level, and has failed to effectively protect privacy interests of employees. Additionally, because the different institutional and policy concerns in constitutional and tort law, the
Katz test is not a fitting analogue for the law of torts.
II. The holding in "Katz"
In
Katz, the Court agreed to decide if law enforcement officials committed a search when they attached an electronic eavesdropping device to the outside of a public telephone booth that intercepted one side of a telephone conversation from the booth. Previously, in
Olmstead v. United States[3] the Court had held that wiretapping from a telephone line extending outside the home or office was not a search, because there was no physical invasion of a house or office, nor a seizure of "tangible material effects."
[4] Fourth Amendment privacy basically only protected physical spaces or physical objects. The Court overruled
Olmstead, and radically reformulated the definition of a search, when it announced that ¿the Fourth Amendment protects people, not places.¿
[5] In explaining its ruling, the Court wrote that one who occupies a telephone booth, ¿to place a call is surely
entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.¿
[6] Thus, the ¿Government¿s activities in electronically listening to and recording the petitioner¿s words violated the privacy upon which he
justifiably relied while using the telephone booth . . . ¿[
7] ¿[O]nce it is recognized that the Fourth Amendment protects people ¿ and not simply ¿areas¿ ¿ against unreasonable search and seizures it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.¿
[8] Based on Katz, ¿a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.¿
[9] III. Problems with the ¿Katz¿ test
In both tort and fourth amendment law, privacy rights are analyzed from two main perspectives: (1) as a threshold matter - do the employee¿s factual averments fall within the penumbra of an ¿employee privacy interest¿; and (2) as a matter of balancing - how offensive was the intrusion. The
Katz test is only a threshold standard; it has nothing to do with balancing; it merely determines which employer conduct must be justified through a balancing test. Nearly every scholar who has studied the test in depth has criticized it from one perspective or another.
[10] It is hard to find a defender of the test. The test suffers from it failure to define or describe privacy; and by its reliance on expectations, which are both enigmatic and highly manipulable by the very persons the standard is intended to restrain.
A. The Katz test does not define privacy
To serve as a meaningful threshold standard, the standard must be capable of informing courts whether an employee¿s factual averments fall within the legal protection of privacy. In employment privacy cases, employees are seeking legal protection from specific employer conduct: e.g., ¿the employer shouldn¿t have read the email between me and my spouse,¿ ¿trained a surveillance camera in the parking lot on me and zoomed in while I was eating my lunch,¿ or ¿required me to list my prior illnesses on an application form.¿
The
Katz test offers very little guidance on the very question it claims to answer. The best it can do is tell the court that the employee¿s allegations fall within the protection of the fourth amendment if they allege violations of a ¿reasonable expectation of privacy.¿ It does not identify which expectations constitute expectations of privacy. Nor does it provide any meaningful guidance in discerning ¿societal expectations of privacy¿ or which of those render the employee¿s expectations of privacy reasonable. The test ultimately defines privacy tautologically as a reasonable expectation of privacy.
[11] B. Vagueness of ¿expectations¿
A court attempting to discern whether a pleading alleges a violation of privacy under the fourth amendment is instructed to examine the plaintiff¿s expectations of privacy, and society¿s opinion as to the reasonable of that expectation of privacy. An employee may have many different expectations related to employer conduct. Take the employee whose employer read, without his permission and solely out of curiosity, an email message the employee sent to his wife about a family medical issue. The employee might have believed (expected) that the employer did not have the technological capability to read his message before the employee could delete it from his computer terminal. He could have expected that his friendly employer would not read his email out of respect for the employee¿s privacy. He could have expected that since society frowns on people reading one another¿s mail that either the employer would adhere to that convention or the law would enforce it by protecting the employee from such employer surveillance in the absence of cause. The employee might also have maintained an expectation that irrespective of anything else, his employer
should not be allowed to read his email. Are all of these expectations of ¿privacy¿? Which of these expectations does the fourth amendment purportedly protect?
On its face, the answer would appear to be: any of those expectations that ¿society¿ deems reasonable. How is a court to ascertain whether ¿society¿ deems any of them reasonable? Should it search for ¿societal¿ expectations to see if any of them match the employee¿s expectations? That would be an onerous task given that societies don¿t have expectations; only individuals comprising the society do. Or should the court be searching for whether a sufficient number of individuals within society consider one of the employee¿s expectations reasonable for him? If so, how many?
[12] Or is the question whether his expectations are reasonable to an employer, or to employees in general, or to the economy? Perhaps the right question is whether a sufficient number of people believe the employee
should be afforded the employment privacy he claims unless justified by the employer as not being unreasonable or too offensive. Or maybe only whether his expectations are consistent with a sufficient number of other peoples expectations of privacy in their employment settings. Should society¿s expectations of privacy in non-employment settings be generalizable to an employment setting?
[13]
If a judge went to the
Katz opinion for answers to these questions, he or she would not find one. What was the basis for Mr. Katz¿s entitlement or expectation of privacy in the words he spoke? Was it based on the fact that telephones are vital to communication? If so, then neither his expectations nor society¿s should matter ¿ how would anyone¿s expectations make telephones any more or less vital to communications? Perhaps the Court protected his utterances from the uninvited ear because it believed a sufficiently large percentage of people in society
actually expect privacy in telephone communications - i.e., Fourth Amendment protections are co-extensive with whatever society actually expects? If that was the basis of the decision, then why would Katz¿ personal expectations be relevant - they do not affect what society as a whole expects? Or, perhaps the Court, on a more general level, viewed society as strongly valuing privacy in telephonic communications, regardless of what people actually expected - that is, the Fourth Amendment was intended to protect those general values from abridgement by the government? Or was it that privacy in telephone communications were perceived by the Court as so important to a free society that the Fourth Amendment itself created the ¿entitlement to assume¿ his spoken words would not be intercepted by the government, regardless of anyone¿s actual expectations?
[14]
That society¿s expectations can be discerned by reference to the ¿customs, values, and common understandings that confer a sense of privacy upon many of our basic social activities¿ has not been particularly helpful.
[15] I have yet to see forensic sociology developing a cottage industry in reasonable expectations of privacy cases. The fact is there are no judicially developed tools for measuring which expectations of privacy are reasonable to society.
[16] --------------------------------------------------------------------------------
[1]
Katz v. United States, 389 U.S. 347 (1967).
[2] As Professor Akhil Amar once remarked in commenting about the fourth amendment exclusionary rule, ¿Judges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated.¿ Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 799 (1994).
[3] 277 U.S. 438 (1928).
[4]
Id. at 466.
[5]
Id. at 351. What a person ¿seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected,¿ but what ¿a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.¿ Id. at 351-52.
[6]
Id. at 352 (emphasis added).
[7]
Id. at 352 (emphasis added).
[8]
Id.
[9]
Kyllo v. United States, 533 U.S. 27, 33 (2004).
[10]
See e.g., Shaun B. Spencer,
Reasonable Expectations and the Erosion of Privacy, 39 San Diego L. Rev. 843, 869 (2002) (and authorities cited therein).
[11]
Kyllo v. United States, 533 U.S. 27, 34 (2001) (¿The Katz test -- whether the individual has an expectation of privacy that society is prepared to recognize as reasonable ¿ has often been criticized as circular, and hence subjective and unpredictable.¿). See also Jeffrey Rosen, The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age 149 (2004) (same).
[12] Given the diversity of our society, how are their divergent expectations to be plotted? Are they to be averaged? If so, by what formula? ¿ by reference to opinion polls, by testimony of sociologists? If opinion polls, what percentage of particular expectations of privacy are necessary for a court to call it ¿reasonable¿?
[13]
See Hill v. National Collegiate Athletic Ass¿n, 865 P.2d 633, 671 (Cal. 1994) (Kennard, J., concurring and dissenting) (¿The applicable social norms are those of society overall, not "social norms" created by an association or an industry practice. . . . Governing social norms, not the specific practices of an individual defendant or industry, define whether a plaintiff has a reasonable expectation of privacy.¿) (citations omitted).
[14] The Court wrote that one who occupies a telephone booth, ¿to place a call is surely
entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. 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).
[15]
People v. Haley, 41 P.3d 666, 672 (Colo. 2001).
[16] The United States Supreme Court recently asked, in the context of thermal imaging of the heat emanating from a home, ¿what [fourth amendment] limits there are upon the power of technology to shrink the realm of guaranteed privacy,¿
Kyllo v. United States, 533 U.S. 27, 34 (2001), but ultimately ¿¿reserved judgment as to how much technological enhancement of ordinary perception¿ turns mere observation into a
Fourth Amendment search.¿ Ill. v. Caballes, 2005 U.S. LEXIS 769.
By failing to define privacy, or at least the purpose of protecting privacy under the fourth amendment, the
Katz test cannot meaningfully delimit the boundaries protected by privacy. Is it any wonder that with such an inscrutable standard Justice Scalia has lamented that:
the only thing the past three decades have established about the
Katz test . . . is that, unsurprisingly, those ¿actual (subjective) expectations of privacy¿ ¿that society is prepared to recognize as ¿reasonable,¿¿ bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable. When that self-indulgent test is employed . . . to determine whether a ¿search or seizure¿ within the meaning of the Constitution has occurred (as opposed to whether that ¿search or seizure¿ is an ¿unreasonable¿ one), it has no plausible foundation in the text of the Fourth Amendment.
Minnesota v. Carter, 525 U.S. 83, 97-98 (1998) (Scalia, J., concurring).
C. Irrelevance of the subjective expectation prong
As construed by most courts, the subjective prong enables government employers - the very object of the fourth amendment - to manipulate, shape, and thereby eliminate their employees¿ subjective expectations of employee privacy. ¿People¿s subjective expectations of privacy tend to reflect the amount of privacy they subjectively experience; and as advances in the technology of monitoring and searching have made ever more intrusive surveillance possible, expectations of privacy have naturally diminished, with a corresponding reduction in constitutional protections.¿
[1] As occurred with airport and courthouse searches of luggage and persons, if the Department of Homeland Security openly conducts video-based facial profiling in public places long enough, eventually no one will have a subjective expectation of freedom from video profiling in public places.
[2] The subjective expectation prong also fails to provide a uniform Fourth Amendment standard. Subjective expectations necessarily vary from person to person. The requirement of a subjective expectation of privacy is fundamentally unfair to people who do not actually have an expectation of privacy that society deems reasonable. This results in wholly arbitrary distinctions which cannot be supported by reference to any Fourth Amendment privacy principles. For instance, does a person with a severe mental impairment who makes a phone call that was tapped by the FBI, without any legal justification, forfeit his Fourth Amendment right to an antecedent warrant because he is unable on the witness stand to articulate that he actually expected his call to be safe from government eavesdropping? What about a new immigrant from a totalitarian country who is accustomed to his phones being tapped by the government, and thus does not subjectively expect privacy from his home telephone calls? Is he to be denied protection of the Fourth Amendment solely because of his past cultural experiences?
Nor can one help but ask why a subjective expectation of privacy is even relevant if ultimately the scope of privacy protected under the fourth amendment is dependent on those expectations society deems reasonable? If society does not deem a subjective expectation of privacy to be reasonable, the employee loses. If it does deem an expectation of privacy in a particular situation to be reasonable, the employee still loses if his expectations did not happen to match ¿society¿s,¿ such as, due to cynicism or cultural isolation.
As Professors LaFave and Amsterdam have noted: ¿One¿s subjective expectation of privacy ¿can neither add to, nor can its absence detract from, an individual¿s claim to Fourth Amendment protection. If it could, the government could diminish each person¿s subjective expectation of privacy merely by announcing half-hourly on television that . . . We were all forthwith being placed under comprehensive electronic surveillance.¿
[3] Even Justice Harlan, who created the subjective prong, eventually disavowed its viability.
[4] D. Failure to incorporate a normative role for the fourth amendment privacy
Even if these practical problems are overstated and could be resolved,
Katz and its progeny have not answered the fundamental question whether the expectations which are to be protected are limited to only those which members of society already possess, or whether the fourth amendment itself
creates expectations of privacy. Is it descriptive, normative, or both?
[5] If the Fourth Amendment was only intended to mirror whatever expectations a substantial segment of society harbors at a particular time (descriptive), then it runs the risk of enabling the government and/or public to shape or condition those expectations at its will. As Professor Slobogin has noted, ¿technology and modern social practices are rapidly reducing everyone¿s privacy and everyone¿s expectations thereof, with the result that a literal construction of
Katz would produce an ever shrinking Fourth Amendment.¿
[6] ¿In theory, the expectation-driven conception of privacy means that behavioral or technological changes in a society can not only diminish, but can also expand the scope of privacy.¿
[7] But in reality ¿we rarely see such expansion of privacy, because the expectation-driven conception of privacy magnifies the effects of incremental encroachment . . . ¿
[8] Unless the Fourth Amendment ¿assigns to the judiciary some prescriptive responsibility,¿ our ¿conception of privacy would continually shrink given the increasing surveillance in the modern world.¿
[9] To guard against the tendency of technology and dominant majoritarian social forces from unduly diminishing privacy, the Court acknowledged long ago that where the government has ¿conditioned¿ expectations of privacy, such as by announcing that henceforth everyone¿s homes will be searched without a warrant, a normative inquiry under the Fourth Amendment would be proper.
[10] If the fourth amendment is in a dialectic tension between incorporating society¿s values and shaping those values, you would not know it from reading
Katz, or its progeny, nor from reading lower court opinions, most of which completely omit any discussion of a normative role for the fourth amendment to establish privacy.
[11] It is not our society¿s ingenuity in developing new technology to spy on people that has reduced fourth amendment protections. Rather, it is the Katz test which has enabled, by its formulation, courts to dismiss privacy claims because the plaintiffs¿ expectations have been overtaken by technology.
IV. Katz and employment cases
A. Cyberspace and physical searches
An example of how the normative value in the fourth amendment dropped off the table is
O¿Connor v. Ortega.
[12] There the Court conferred on employers precisely the conditioning power which allows the employer to fix, at will, the boundaries of employee privacy. As the plurality wrote: ¿Public employees¿ expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector,
may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.¿
[13] Most courts have interpreted this language to eliminate, not just reduce, employee privacy. In effect, courts have ceded to public
employers plenary authority to condition their employees¿ expectations of employee privacy, thereby allowing the employers to define the scope of their own fourth amendment limitations.
For example, by simply giving its employee notice that their computer or Internet transactions will be audited, many lower courts have held that none of the employees could possess a reasonable expectation of privacy in the information audited.
[14] Based on
Katz, the same rationale has been applied to telephone monitoring at work,
[15] and to searches of offices, desks, backpacks and lockers.
[16] Applying the
Katz/Ortega test, courts have also held that prior notice of a conflict of interest policy was sufficient to defeat an employee¿s expectation of privacy in maintaining an off duty intimate relationship with a subordinate,
[17] and that a job description defeated female employees¿ expectations of privacy from having to ¿disrobe and insert a speculum in [their] vagina in front of a group of health workers.¿
[18] Similar reasoning is used in common law employee privacy cases.
[19] Fortunately, some courts opt to balance interests in spite of disclaimers, but then treat prior notice as substantially diluting the weight to be given the privacy interest on the metaphorical teeter totter.
[20] The rationale for this dilution appears to be based on the contestable assumption that intrusions preceded by notice are universally less intrusive than individual searches based on individualized suspicion or probable cause.
[21] It is inconceivable that the
Katz Court would have allowed the government to evade or dilute its ruling by placing disclaimer stickers on public phone booths warning people that the government may or will be monitoring their phone calls. As Professor Camille Hebert wisely observed, ¿To allow employers to negate the privacy interests of employees simply by saying that employees have no such interests renders meaningless the protections of the Fourth Amendment.¿ Hebert, Employee Privacy Law § 8:09, p. 42 (2003).
B. Employer electronic surveillance cases
Despite the fact that most people find others listening into their phone calls to be highly offensive, courts have repeatedly held that employees¿ expectations of private telephone calls at work is not reasonable if the employer gave them prior notice of the monitoring.
[22] Because Katz offers no theory of privacy and is difficult to apply, lower courts are forced to employ such spurious factual distinctions to prevent balancing in electronic surveillance cases as: whether the surveillance is secret; whether it is audio or video; the place where the person reconnoitered was located, the risks of betrayal of persons who are around the person surveilled, whether humans could obtain the same information as the electronic auditor without the electronic device, whether the electronic spy is merely an adjunct to the employer¿s limited memory; how loud someone spoke, employer notices and regulations; the extent to which the surveillance technology is available to the public, and the duration of the surveillance, among others.
[23] Professor Christopher Slobogin has identified at least seven irrelevant factors courts have cited in analyzing the scope of visual surveillance technology of a person¿s home. In addition to the nature of the technology itself, they are:
(1) the nature of the place to be observed; (2) the steps taken to enhance privacy; (3) the degree to which the surveillance requires a physical intrusion onto private property; (4) the nature of the object or activity observed; (5) the extent to which the technology enhances the natural senses; and (6) the extent to which the surveillance is unnecessarily pervasive, invasive, or disruptive (i.e., steps taken by the police to minimize the intrusion).
[24] In order to understand why there is so little fourth amendment privacy protection from electronic surveillance, it is necessary to trace Katz¿ progeny.
1. History of the doctrines of assumption of risk and waiver of informational privacy by disclosure to another
One of the most anti-privacy principles in fourth amendment law is the assumption of risk doctrine. Based on
dicta from
Katz that ¿what a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protections . . .¿ courts have held that disclosure of information to another is disclosure to the world, and therefore the first disclosor forfeits all privacy rights in the information so disclosed.
[25] It is highly doubtful the Supreme Court intended to establish such a rule.
Beginning with
Hoffa v. U.S.,
[26] the Court held reasonably enough that use of information in a criminal investigation disclosed to an informant who befriended and misrepresented his agency with the government did not violate Hoffa¿s fourth amendment right to privacy. The Fourth amendment issue was whether the informant¿s deceit, and use of the information derived from that deception, rendered the information a product of an unreasonable search or seizure. The Court held it did not because Hoffa took the risk that his companion might be a government snitch, and nothing in the Fourth Amendment bars the government from utilizing such tactics.
The first step in reducing aural privacy came in
Lopez v. U.S,
[27] where an informant hid an active tape recorder in his jacket, which the government replayed at trial to corroborate the informant¿s testimony. The Court held that there was no constitutional difference between the testimony of the informant in
Hoffa, who was not wired, and the electronic testimony of the wired informant in
Lopez. Relying on the assumption of risk reasoning in
Hoffa, the Court held that ¿the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.¿
[28]
The second step in the curtailment of fourth amendment privacy came in
United States v. White,
[29] The Court was faced with the next logical question left unanswered in Lopez: is there any constitutional difference between the informant tape recording the conversation himself, and simultaneously transmitting what he heard by radio transmitter to the univited ear of police officers listening to the transmission from a remote location. By a 4-4 decision, with Justice Black concurring in the judgment based on his view that electronic surveillance is never a search or seizure under the fourth amendment, the plurality held there was no difference.
For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks. . . .
[30] The third stage in the erosion of fourth amendment electronic privacy came in a series of non-electronic cases which perverted the seemly unobjectionable dicta in
Katz, and expanded the rationale of
Hoffa and
Lopez to disclosures to private citizens. In
United States v. Miller,
[31] a bank turned over bank records of one of its depositors to the government, in response to a grand jury subpoena. The Court rejected the depositor¿s argument that the subpoena violated his fourth amendment right to privacy.
The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.
U.S. v. Miller, 425 U.S. 435, 443 (1976).
Three years later in
Smith v. Maryland,
[32] the Court held that a telephone company¿s voluntary disclosure to the police of the numbers dialed from defendant¿s home phone did not infringe upon a reasonable expectation of privacy. As the Court explained:
This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. . . . When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and "exposed" that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.
Id. at 734-44.
Then in
Calf. v. Greenwood,
[33] the Court held there was no fourth amendment privacy interest in the content of an opaque trash container set on a curb for private trash pick up, when the trash collector, who had been converted to a government agent, turned its contents over to the police. Once again the Court wrote that the defendants:
exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily
accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who
might himself
have sorted through respondents' trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage "in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it, respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.
Id. at 40-4 (Emphasis added).
The fourth step in the devolution of electronic privacy came in
U.S. v. Knotts,
[34] where the Court held that electronic tracking devices used by the police to monitor, record and analyze a person¿s movements over time during an automobile trip did not infringe on a protected privacy interest.
A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When Petschen 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. . . .
Id. at 281-82 (Emphasis added).
A year later the Court slightly reigned in the effect of
Knotts by holding that beeper monitoring had to stop at the doorstep of a person¿s home. However, in
U.S. v. Karo,
[35] the Court reiterated that outside the home beeper monitoring during public travel did not invade a legitimate fourth amendment privacy interest, because ¿it revealed no information that
could not have been obtained through visual surveillance.¿
[36] In two more surveillance cases, the Court continued to apply the above reasoning to define the scope of privacy under the fourth amendment. In
Calf. v. Ciraolo,
[37] the Court rejected the defendant¿s claim that the police infringed on a reasonable expectation of privacy in his backyard when they observed marijuana plants from aerial surveillance at an altitude of 1,000 feet, despite the fact that he had 6 feet and 10 feet fences surrounding his property. According to the Court he lacked a legitimate expectation of privacy from observation because anyone ¿flying in this airspace who glanced down could have seen everything that these officers observed.¿
[38] In
Dow Chemical Co. v. U.S.,
[39] the Court held that Dow lacked a reasonable expectation of privacy from an aerial photographer working for the EPA who photographed one of its plants, because any ¿person with an airplane and an aerial camera
could readily duplicate the photographs taken by the EPA.¿
[40] The rationale of these cases has also been applied to video surveillance.
[41] Finally, in
Kyllo v. United States,
[42] held the government committed a search of a home by using a thermal imager to detect emanating from the house. However, it qualified its ruling that ¿obtaining by sense-enhancing technology any information regarding the interior home that could not otherwise have been obtained without a physical intrusion,¿ was search, by noting that the holding was limited to sense-enhancing technology that was ¿not in general public use.¿
[43] What began as a common sense holding that there is no fourth amendment privacy interest in freedom from betrayal, and unobjectionable
dicta in a case which, ironically, was intended to expand privacy, has morphed into a rule which could be fairly construed to mean that once you leave your home you are not entitled to any visual privacy, including high tech invasions of visual privacy, and even when you are in your home, you forfeit privacy in any information in your home whether or not you disclose it to
-------------------------------------------------------------------------------
[1]
See, e.g., Hamilton v. N.J. Dep¿t of Corr., 841 A.2d 94, 98 (N.J. Super. Ct. 2004) (¿In this analytical context we note our previous recognition that urinalyses are commonplace in these days of periodic physical examinations and do not constitute an unduly extensive imposition on an individual¿s personal privacy and bodily integrity¿); Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in American 60-61 (2000).
[2]
See e.g., Vo v. City of Garden Grove, 9 Cal. Rptr. 3d 257, 277 (Cal. App. 2004) (¿With the near ubiquitous use of video surveillance in retail establishments, at automated bank teller machines, and at road intersections, it is difficult to imagine, certainly at the preliminary injunction stage, that the customer¿s expectation of privacy is reasonable under the circumstances¿).
[3] Wayne R. LaFave, 4 Search And Seizure: A Treatise Of The Fourth Amendment § 8.2(l), p. 123, n. 328 (4th ed. 2004) (quoting Amsterdam,
Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 384 (1974)).
[4]
United States v. White, 401 U.S. 745, 780 n. 24 & 786 (1971) (Harlan, J., dissenting) (¿I am now persuaded that such an approach misconceives the basic issue, focusing, as it does, on the interests of a particular individual rather than evaluating the impact of a practice on the sense of security that is the true concern of the Fourth Amendment's protection of privacy. . . . [the] ¿analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk.¿ ).
See also Fowler v. New York City Dep¿t of Sanitation, 704 F. Supp. 1264, 1270 (S.D.N.Y. 1989) (noting that ¿subjective expectation generated by a warning or other indicium of voluntary consent does not necessarily prevent government conduct from being considered a Fourth Amendment search.¿);
State v. Hempele, 576 A.2d 793, 801 (N.J. 1990) (noting same, and refusing to apply the subjective prong under the New Jersey Constitution).
[5] Note,
Keeping Secrets in Cyberspace: Establishing Fourth Amendment Protection for Internet Communication, 110 Harv. L. Rev. 1591, 1607 (1997)(noting the Katz test has been said to be both ¿normative and descriptive¿).
[6] Christopher Slobogin,
Camera Surveillance of Public Places and the Right to Anonymity, 72 Miss. L. J. 280-81 (2002)
[7] Shaun B. Spencer,
Reasonable Expectations and the Erosion of Privacy, 39 San Diego L. Rev. 843, 869 (2002).
[8]
Id. A purely descriptive test would also be inconsistent with the anti-majoritarian character of the Bill of Rights by failing to ¿secure the minority against the usurpations and tyranny of the majority.¿ Essays on the Making of the Constitution (2d ed.) 276 (L. Levy ed. 1987) (¿ the Bill of Rights was to defend an individual against the majority in a republick as against the king in a monarchy.¿ (quoting Agrippa).
[9] Daniel J. Solove,
Conceptualizing Privacy, 90 Cal. L. Rev. 1087, 1142 (2002).
[10]
Smith v. Maryland, 442 U.S. 735, 740 n.5 (1979).
[11] See Robert C. Post,
Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4, 8 (2003) (¿[C]onstitutional law and culture are locked in a dialectic relationship, so that constitutional law both
arises from and in turn
regulates culture.¿) (emphasis added); Laurence H. Tribe,
The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics, 103 Harv. L. Rev. 1 (1989) (noting same dynamic).
See also Christopher Slobogin, Camera Surveillance of Public Places and the Right to Anonymity, 72 Miss. L. J. 213, 284-85 (2002) (noting that if the Court¿s perceptions of intrusions fail to mirror society¿s, the Court¿s legitimacy is undermined).
[12] 480 U.S. 709 (1987).
[13]
Id. at 717 (emphasis added).
[14]
See Attachment G- Anti-privacy disclaimers. See also United States v. Thorn, 375 F.3d 679 (8th Cir. 2004) (based on notice that employee could not expect privacy in the contents of his office computer, and was not allowed to possess pornography on it, employee lacked reasonable expectation in employer¿s search of his hard drive);
Muick v. Glenayre Elecs., 280 F.3d 741, 743 (7th Cir. 2002) (Posner, J.) (since the employer ¿had announced that it could inspect the laptops that it furnished for the use of its employees, [ ] this destroyed any reasonable expectation of privacy that Muick might have had and so scotches his claim¿) (and cases cited therein);
United States v. Angevine, 281 F.3d 1130, 1134 (10th Cir. 2002) (employer¿s ¿policies and procedures prevent its employees from reasonably expecting privacy in data downloaded from the Internet onto the University¿s computers¿);
United States v. Slanina, 283 F.3d 670, 676 (5th Cir. 2002),
vacated on other grounds, 537 U.S. 802 (2002) (¿given the absence of a city policy placing Slanina on notice that his computer usage would be monitored and the lack of any indication that other employees had routine access to his computer, we hold that Slanina¿s expectation of privacy was reasonable¿);
Leventhal v. Knapek, 266 F.3d 64, 73-74 (2d Cir. 2001);
Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (regarding personal e-mail communications to recipient via public bulletin, ¿disclaimer defeats claims to an objectively reasonable expectation of privacy for [bulletin board] users¿);
United States v. Monroe, 52 M.J. 326, 330 (C.A.A.F. 2000) (holding no reasonable expectation of privacy in e-mail read by employees who maintained the system where message popped up on computer screen stating ¿user logging on to this system consents to monitoring¿ by system administrator);
United States v. Simons, 206 F.3d 392 (4th Cir. 2000) (employee could not possess a legitimate expectation of confidentiality in Internet cites he accessed through employer¿s computer where employer maintained a policy that was disclosed to the employee that the contents of his computer were subject to audit, including Internet connections and e-mail messages);
United States v. Bailey, 272 F. Supp. 2d 822, 835 (D. Neb. 2003) (¿an employer¿s notice to an employee that workplace files, Internet use, and e-mail may be monitored undermines the reasonableness of an employee¿s claim that he or she believed such information was private and not subject to search¿);
Haynes v. Office of the AG, 298 F. Supp.2d 1154 (D. Kan. 2003);
Kelleher v. City of Reading, 2002 U.S. Dist. LEXIS 9408 (E.D. Pa. May 29, 2002);
Wasson v. Sonoma County Junior College Dist., 4 F. Supp. 2d 893, 905-06 (N.D. Cal. 1997) (employer¿s computer policy giving it ¿the right to access all information stored on [the employer¿s] computers¿ defeats employee¿s reasonable expectation of privacy in files stored on employer¿s computers);
Hart v. Clearfield City, 815 F. Supp. 1544, 1548 (D. Utah 1993);
Chicago Firef (as applied to laptop computer used at home);
In re Bd. of Cty. Commrs. of Arapahoe County, __P.3d ___(Colo. App. 2003),
cert. granted, (notice and signing acknowledgment forms that employees should not expect privacy in county e-mails prevents reasonable expectation of privacy in e-mails from county employer, but not necessarily from public in general).
[15]
Hart v. Clearfield City, 815 F. Supp. 1544, 1548 (D. Utah 1993) (citing notice of ubiquitous monitoring in dispatch area as a reason why plaintiff lacked a reasonable expectation of privacy in a personal phone call);
PBA Local No. 38 v. Woodbridge Police Dept., 832 F. Supp. 808, 818-19 (D. N.J. 1993)(since employee¿s telephone calls were made with a beep every 5 seconds knowing the call was being recorded, they could have neither an actual nor a reasonable expectation of privacy in their calls).
[16]
United States v. Gonzalez, 300 F.3d 1048, 1051-52 n.10 (9th Cir. 2002) (¿The store was entitled to search [employee¿s] backpack for stolen merchandise, even though the search was on a random basis without reasonable suspicion, but only because he had clear notice before he ever came to work with his backpack that he would be subject to just such a search¿) (emphasis added);
Schowengerdt v. United States, 944 F.2d 483, 488 (9th Cir. 1991) (office and credenza);
American Postal Workers Union, etc. v. United States Postal Service, 871 F.2d 556, 560-61 (6th Cir. 1989) (lockers);
Schowengerdt v. General Dynamics Corp., 823 F.3d 1328, 1335 (9th Cir. 1987) (desk, and citing locker cases);
Johnson v. City of Menlo Park, 1999 U.S. Dist. LEXIS 11498 (N.D. Cal. July 23, 1999) (desks),
aff¿d, 7 Fed. App. 712 (9th Cir. 2001);
Chicago Fire Fighters Union, Local 2 v. City of Chicago, 717 F. Supp. 1314, 1319 (N.D. Ill. 1989) (lockers);
Dawson v. State, 868 S.W.2d 363, 371 (Tex. App. 1999) (involving lockers).
Cf. Lewis v. Dayton Hudson Corp., 339 N.W.2d 857 (Mich. App. 1983) (signs posted on fitting rooms in department stores defeated expectation of privacy from security guard¿s observation from grate in ceiling above the room; noting that the employer ¿could have established a lack of an expectation of privacy if, for instance, there was evidence that (1) the accused was given written notice of searches, (2) written notice was posted, (3) oral notice was given in the accused¿s presence, (4) the accused was aware of [similar] searches, or (5) a government regulation applied permitting such searches.¿).
[17]
Barbee v. Household Automotive Fin. Corp., 6 Cal. Rptr. 3d 406 (Cal. App. 2003).
[18]
Feminist Women¿s Health Center v. Superior Court, 61 Cal. Rptr. 2d 187, 193 (Cal. App. 3d Dist. 1997).
[19]
Thygeson v. U.S. Bancorp, 2004 U.S. Dist. LEXIS 18863 (D. Or. Sept. 15, 2004) (employee did not have a reasonable expectation of privacy in saved emails in his personal folder or in the websites he accessed, including the website he used to access his Netscape account, because the employer could access the information within its own system);
Smyth v. Pillsbury Co., 914 F. Supp. 97, 101 (E.D. Pa. 1996) (same reasoning applied to intrusion tort involving employee computer use);
Garrity v. John Hancock Mut. Life Ins.
Co., 146 Lab. Cas. (CCH) P59541 (D. Mass. May 7, 2002) (same as applied to state privacy statute);
TBG Ins. Services Corp. v. Superior Ct., 117 Cal. Rptr. 2d 155, 161 n. 5 (Cal. App. 2d Dist. 2002) (based on employer disclaimers ¿the use of computers in the employment context carries with it social norms that effectively diminish the employee¿s reasonable expectation of privacy with regard to his use of his employer¿s computers¿) (California Constitution);
McLaren v. Microsoft Corp., 1999 Tex. App. LEXIS 4103 (same as applied to intrusion tort).
[20]
Wiley v. DOJ, 328 F.3d 1346, 1352 (Fed. Cir. 2003) (¿Wiley¿s expectation of privacy was mitigated by the conspicuous sign posted at the entrance of the Institution parking lot indicating that his vehicle was subject to search.¿);
United States v. Gonzales, 300 F.3d 1048, 1054 (9th Cir. 2002) (¿Mr. Gonzalez's expectation of privacy was limited by his knowledge of the store policy of searching employees' belongings to deter and apprehend theft. His reduced expectation is not the end of the inquiry, however, because at some point the circularity of reduced expectations of privacy can destroy any privacy at all.¿);
Anobile v. Pelligrino, 303 F.3d 107, 120 (2d Cir. 2001) (notice ¿somewhat reduces¿ expectation of privacy in racetrack dormitory);
McGann v. Northeast Ill. Regional Commuter R.R. Corp., 8 F.3d 1174 (7th Cir. 1993) (observing that prior notice is ¿a pivotal consideration when assessing the intrusiveness of the search at issue¿);
DeMaine v. Samuels, 2000 U.S. Dist. LEXIS 16277 (D. Conn. 2000) (noting that otherwise, ¿the government and quasi-public institutions would gain broad power to refashion the contours of the Fourth Amendment merely by proclamation.¿) (quoting
Chenkin v. Bellevue Hospital Center, New York City Health & Hospitals Corp., 479 F. Supp. 207, 213 (S.D.N.Y. 1979);
Hill v. National Collegiate Athletic Ass¿n, 865 P.2d 633, 646-49 (Cal. 1994) (¿advance notice of an impending action may serve to ¿limit [an] intrusion upon personal dignity and security¿ that would otherwise be regarded as serious.¿);
Kraslawsky v. Upper Deck Co., 65 Cal. Rptr. 2d 297, 306 (Cal. App. 1997) (¿consent is generally viewed as a factor in the balancing analysis, and not as a complete defense to a privacy claim¿);
Petersen v. City of Mesa, 83 P.3d 35 (Ariz. 2004),
cert. denied, 160 L. Ed. 2d 20 (2004), (rejecting suspicionless random drug testing of firefighters despite reduced expectation of privacy based on notice and their dangerous occupation).
See also 4 Wayne R. LaFave, Search And Seizure: A Treatise Of The Fourth Amendment § 8.2(k) at 123, n. 328 (4th ed. 2004) (recommending not to try to capture Fourth Amendment search cases within the rubric of consent based on prior notice but rather by ¿simply asking whether [the search meets] the reasonableness requirement of the Fourth Amendment, an inquiry in which it will nonetheless be relevant that advance notice was given of the circumstances in which a search may occur.¿
Id. at 123-4.
[21] In
Tres. Employees v. Von Raab, the Court footnoted the fact that by giving employees advance notice of the ¿scheduled sample collection,¿ it reduced the ¿unsettling show of authority that may be associated with unexpected intrusions on privacy.¿ 489 U.S. 656, 672, n.2 (1989) (internal quotation marks and citation omitted). If a legal secretary were required to submit to random searches of her purse, along with the other male and female employees, is the secretary likely to be less offended by the search because he knows from advance warning that his privacy might be so invaded, or that others are similarly abused? Would the employee whose supervisor discovered in her email or voice mail that her pregnancy test was positive likely be comforted by the fact that every other employee¿s email is also subject to random search?
[22] Cf. Harris Poll #17 (March 19, 2003) (finding that 73% of Americans find it ¿extremely important¿ not to have someone listen to them without their permission).
[23]
See attached paper -
Anti-privacy disclaimers; Attachment E - High-tech surveillance.
[24] Christopher Slobogin,
/Peeping Techno-Toms and the Fourth Amendment: Seeing Through Kyllo¿s Rules Governing Technological Surveillance, 86 Minn. L. Rev. 1393, 1406 (2002). He notes that such considerations have caused lower courts to resolve video surveillance cases based on whether the ¿curtilage is secluded enough, a fence high enough, a curtain drawn enough, or a crack in the door small enough.¿
Id. at 1414-15 & 1408.
[25] Katz, 389 U.S. at 351.
[26] 385 U.S.. 293 (1966).
[27] 373 U.S. 427 (1963).
[28]
Id. at 439.
[29] 401 U.S. 745 (1971).
[30]
Id. at 751 & 752. (Emphasis added).
See also United States v. Caceres, 440 U.S. 741, 750-51 (1979)(same).
[31] 425 U.S. 435 (1976).
[32] 442 U.S. 735 (1979).
[33] 486 U.S. 35 (1988).
[34] 460 U.S. 276, 282-82 (1983).
[35] 468 U.S. 705 (1984).
[36]
Id. at 707. (Emphasis added).
[37] 476 U.S. 207 (1986).
[38] Id. at 209 (emphasis added).
[39] 476 U.S. 227 (1986).
[40] Id. at 231 (emphasis added).
[41]
U.S. v. Lee, 359 F.3d 194, 201-02 (3d Cir. 2004);
U.S. v. Corona-Chavez, 328 F.3d 974, 981 (8th Cir. 2003).
[42] 533 U.S. 27, 33 (2004).
[43] Id. at 34.
others, so long as third parties
could have acquired that information on their own with surveillance technology that is readily accessible to the public, such as bugging, wiretapping, and the use of night vision telescopes
.[1] 2. Lower court applications of the assumption of risk/all-or-nothing privacy doctrine
Based on these precedents, one line of cases holds that employers may search employee email without infringing on an employee privacy interest once the transmission was received by the intended recipient.
[2] This is based on the exposure to one is exposure to all theory. In
U.S. v. Monroe,
[3] the court held that the employee lacked a reasonable expectation of privacy in his email because ¿there is the risk that an employee or other person with direct access to the network service will access the e-mail. . . .¿
[4] Similar reasoning has been applied in tort cases.
[5] Government video taping of persons in public places is routinely held to not implicate the fourth amendment.
[6]
a. The ¿could have¿ doctrine
Law enforcement cases under the
Katz test, do not require the informant to possess the technology that records and transmits private information, provided he or she consents and is present when a third party activates the audio and video equipment.
[7] Based on this reasoning, bugs and secret video taping can be installed in a person¿s home or office (though not by trespass) and monitored by third parties, so long as a person is present who consents to the surveillance. But in employment cases, lower courts have extended the language from
U.S. v. Karo,[8] that beeper monitoring outside the home is not a search because it does not reveal ¿information that could not have been obtained through visual surveillance,¿
[9] so far that it no longer matters whether an employer¿s covert surveillance of employees is conducted while anyone else is present, or consents to the surveillance. Nor does it make a difference that the employee did not disclose any information to another person. The only remaining limit to the right of employers to secretly audio or video tape employees is that they do so in circumstances in which hypothetical others could have observed or overheard the employee.
[10] Based on this reasoning, an employer would be justified in secretly video taping an employee in a shower, as long as someone could have seen his naked body there.
Yet this is clearly inconsistent with what the footnoted in
Karo.
As the plurality recognized in United States v. White, there is a substantial distinction between "[revelations] to the Government by a party to conversations with the defendant" and eavesdropping on conversations without the knowledge or consent of either party to it. A homeowner takes the risk that his guest will cooperate with the Government but not the risk that a trustworthy friend has been bugged by the Government without his knowledge or consent. Under JUSTICE O'CONNOR's view it could easily be said that in Katz v. United States, Katz had no reasonable expectation of privacy in his conversation because the person to whom he was speaking might have divulged the contents of the conversation. There would be nothing left of the Fourth Amendment right to privacy if anything that a hypothetical government informant might reveal is stripped of constitutional protection
.[11]
Moreover, by permitting electronic surveillance under the fourth amendment merely because others ¿could have¿ observed what was electronically monitored ¿stretches the ¿plain view¿ doctrine to include the observations of a hypothetical as well as an actual observer.¿
[12] As Professor John M. Junker has explained:
This idea is utterly inconsistent with the basic fourth amendment principle that an unreasonable search or seizure cannot be rescued by the fact that it could have been reasonably conduct, for example, that because a warrant, if sought, would have been granted it was permissible to act without a warrant. The use of a hypothetical observer to remove surveillance by beeper from the scope of the amendment is no more acceptable than the use of a hypothetical warrant to salvage an intrusion that violates its content. In is only less obvious. It has the same capacity to nullify fourth amendment rights, for just as there is a ¿reasonable¿ way to conduct every search, there are modes by which all phenomena may observed without ¿searching.¿
John M. Junker,
The Structure Of The Fourth Amendment: The Scope Of The Protection, 79 J. Crim. L. & Criminology 1105, 1128 (1989).
Ultimately,
Courts should bear in mind that the issue is not whether it is conceivable that someone could eavesdrop on a conversation but whether it is reasonable to expect privacy. No matter how technologically advanced cordless communication becomes, some people will always find a way to eavesdrop on their neighbors. However, "the fact that [Listening] Toms abound does not license the government to follow suit."
[13] Relying on
Katz and its progeny, courts are eliminating employee privacy from employer surveillance.
b. Asking the wrong question cases
Another unintended effect of the Katz test¿s obscurity is that courts are often diverted from analyzing the relevant privacy question raised by the litigants in favor of focus on a multitude of irrelevant factors. In People v. Galvadon,
[14] the police entered a liquor store and searched the backroom without the consent of the employee on duty. Finding illegal drugs, the employee was charged with illegal drug sale. In response to his suppression motion, in which he argued that the police invaded his privacy by entering a private room over which he had possessory control without a warrant, the government contended he could not have had a reasonable expectation of privacy in the back room because he was aware that his employer kept a videotape of the room running 24-hours per day. The court rejected the government¿s argument, holding that the proper fourth amendment privacy question wasn¿t whether the employee had a reasonable expectation of privacy from his employer¿s video surveillance, but rather whether he had a right to expect privacy in the room from the police. Based on that question, the court held the police invaded the employee¿s privacy. The court also rejected the state¿s argument that the employee¿s reduced expectation of privacy from his employer diminished his expectation of privacy from the police.
In contrast to the relevant privacy question asked by the Colorado Supreme Court, the Fifth Circuit recently dismissed the claims of a grandmother and father who were bugged and videotaped at the grave site of their grandchild and son during a burial ceremony.
[15] The local Sheriff¿s office had placed a microphone in an urn near the grave site and recorded conversations of persons nearby the urn. The rationale for dismissal was that the plaintiffs failed to create a triable issue of fact with respect to:
(1) the volume of the communication or conversation; (2) the proximity or potential of other individuals to overhear the conversation; (3) the potential for communications to be reported; (4) the affirmative actions taken by the speakers to shield their privacy; (5) the need for technological enhancements to hear the communications; and (6) the place or location of the oral communications as it relates to the subjective expectations of the individuals who are communicating.
[16] None of these factors were critical to the privacy the Kee¿s were seeking. They weren¿t complaining about the fact that other people nearby might overhear them and report the contents of overheard conversations third parties; that risk was inherent in their conversations and prayers, as was Galvadon¿s risk that his employer would see his misdeeds on the videotape and report them to the police. Their complaint was that their privacy was invaded by the secret intruder to their conversations (the mike in the urn and the cops who were simultaneously listening to them) and the false sense of security caused by being dispossessed of the ability to even assess the risks associated with their conversations. They may have also been complaining about the very indignity of such an intrusion during an emotional funeral ceremony, regardless where the ceremony took place.
In employment cases, courts often ask the wrong question under the Electronic Communications Privacy Act, in assessing whether an employee has exhibited ¿an expectation that [his telephone calls at work were] not subject to interception under circumstances justifying such expectation.¿
[17] The statutory language is clear enough. It protects oral communications from electronic interception where the speaker doesn¿t reasonably expect to be bugged. However, some court veer off into an unfocused analysis of whether the plaintiff had a generalized reasonable expectation of privacy, and painstakingly go through a multi-factoral test, as in
Kees, supra.
[18] Yet, none of those factors has much probative value as to whether a person had a reasonable expectation that his oral conversations were not being bugged. The volume of the communication is not relevant to the proper question. Nor is whether other people were nearby who could hear their conversation, whether others could report the conversation to third parties, actions taken to shield their privacy, the need for technological enhancement to hear the conversation, nor the place. If a person is in a place where they know oral conversations are being bugged, the place where the conversation occurred would be relevant to whether the parties expected to be bugged. One expects to be free of electronic interceptions of telephone communications whether they are in a bar, in their car, office
home, or public phone booth.
Fortunately, other courts have not been so insensitive to electronic communications Privacy by asking the appropriate privacy question whether the individual who calls were intercepted had a reasonable expectation that his communications was
not being intercepted.
[19]
One who invites another to his home or office takes a risk that the visitor may not be what he seems, and that the visitor may repeat all he hears and observes when he leaves. But he does not and should not be required to take the risk that what is heard and seen will be transmitted by photograph or recording, or in our modern world, in full living color and hi-fi to the public at large or to any segment of it that the visitor may select.
[20] c. Use of places to reduce privacy
In yet another line of cases, courts will cite to the physical location of the target of electronic surveillance to narrow, but rarely to expand privacy.
[21] Yet that theory of privacy is exactly what Katz rejected in 1967.
[22] ¿[O]nce it is recognized that the Fourth Amendment protects people ¿ and not simply ¿areas¿ ¿ against unreasonable search and seizures it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.¿
[23] What one ¿seeks to preserve as private, even in an area accessible to the public,¿ may be protected by the fourth amendment.
[24] ¿No matter where an individual is, whether in his home, a motel room, or a public park, he is entitled to a "reasonable" expectation of privacy.¿
[25] There is a difference between citing places to protect privacy and citing places to deny privacy.
As to audio privacy, why should place matter at all? If an employee is walking down the street using a cell phone, does the employer get to tap it without infringing on his interest in communications privacy? If I am in a bar or a concert, shouldn¿t I have a strong privacy interest against my employer intercepting and tape recording my cell phone conversation, even if others around me can hear my end of the conversation; I chose to let them listen, not the invisible electronic agent of my employer?
As to video surveillance, if it is an invasion of an employee privacy interest to secretly film him in his office, without his permission, but not in his back yard, what is the difference in terms of audience control? In neither case is the employee complaining so much about where he is seen; he is complaining about being secretly recorded. Since the only difference is related to place, how can such a distinction be credible without tripping over the fallacy of reducing privacy to places, which the Court said not to do in Katz? How can one say that secretly video taping a person in his home invades his privacy, but once he walks outside it doesn¿t? Do we have to hide in our home if we want to be free of audio and video recordings? While place may be a factor in balancing, it rarely has a role to play in assessing whether an employee privacy interest in freedom from electronic surveillance has been infringed.
3. Criticisms of the assumption of risk/all-or-nothing privacy doctrine
The assumption of risk/all-or-nothing approach to privacy has been widely criticized as analytically flawed from various angles.
[26] As Professor Tribe has written:
The ¿assumption of risk¿ - more aptly, ¿assumption of broadcast¿ - notion underlying the holdings in Smith and Miller reveals alarming tendencies in the Supreme Court¿s understanding of what privacy means and ought to mean. The Court treats privacy almost as if it were ¿a discrete commodity, possessed absolutely or not at all.¿ Yet what could be more commonplace than the idea that it is up to the individual to measure out information about herself selectively - to whomever she chooses? . . .
The Court¿s counter-intuitive understanding of ¿assumed risks¿ generates a terribly crabbed sense of the contemporary possibility for privacy.
[27] In the beeper cases, to assume the risk that others might see us driving or walking in a park is not the same thing as the assumption that ¿our public actions will be reduced to a photograph or film that can be ¿scrutinized indefinitely and disseminated to an unintended audience¿ and that ¿allows the viewer to discern details that would not have been apparent to a casual observer.¿¿
[28] Professor LaFave has described the assumption of risk reasoning as a ¿mockery¿ of the Katz test and the Fourth Amendment.
[29] The normally nuanced Professor said of U.S. v. Miller: ¿The result reached in Miller is dead wrong, and the Court¿s woefully inadequate reasoning does great violence to the theory of Fourth Amendment protection which the Court had developed in Katz.¿
[30] The ¿disclosure to one is a disclosure to all¿ is inconsistent with various pronouncement by the Supreme Court in other contexts. As the Court wrote in U.S. Dept. of Justice v. Reporters Comm. for Freedom of the Press,
[31] ¿information may be classified as "private" if it is "intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public."
[32] In an employment case a majority agreed with Justice Scalia when he wrote:
It is privacy that is protected by the Fourth Amendment, not solitude. A man enjoys Fourth Amendment protection in his home, for example, even if his wife and children have the run of the place and indeed, even though his landlord has the right to conduct unannounced inspections at any time. Similarly, in my view, one¿s personal office is constitutionally protected against warrantless intrusions by the police, even though employer and co-workers are not excluded. . . .
[33] As Justice Marshall correctly observed in his dissent in Smith v. Md.,
To make risk analysis dispositive in assessing the reasonableness of privacy expectations would allow the government to define the scope of Fourth Amendment protections. For example, law enforcement officials, simply by announcing their intent to monitor the content of random samples of first-class mail or private phone conversations, could put the public on notice of the risks they would thereafter assume in such communications. Yet, although acknowledging this implication of its analysis, the Court is willing to concede only that, in some circumstances, a further "normative inquiry would be proper." No meaningful effort is made to explain what those circumstances might be, or why this case is not among them.
In my view, whether privacy expectations are legitimate within the meaning of Katz 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. By its terms, the constitutional prohibition of unreasonable searches and seizures assigns to the judiciary some prescriptive responsibility. As Mr. Justice Harlan, who formulated the standard the Court applies today, himself recognized: "[since] it is the task of the law to form and project, as well as mirror and reflect, we should not . . . merely recite . . . risks without examining the desirability of saddling them upon society."
[34] As Harlan explained in White, fourth amendment privacy analysis, must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk. 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.
Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement.
[35] Professor Sherry Colb has suggested that the ¿majority opinions in Kyllo and Ferguson . . . stand together for the proposition that the risk/invitation equation may be in retreat.¿
[36] I hope she is right.
E. Conclusion
In the past 40 years, the Katz test has proven too elusive to form any meaningful protection for employee privacy. Courts have ignored the normative potential of the fourth amendment to protect employee privacy. Lower courts have applied Katz in ways antithetical to employee privacy. The factors alone counsel against tort law repeating this jurisprudential mistake by importing the Katz to tort law.
V. The Katz test is an inapt analogue for the tort of employee privacy
Whether the institutional and policy differences between tort law and constitutional law can support a one-size-fits-all approach is a legitimate question.
[37] I believe it cannot. First, fourth amendment law is designed to regulate the behavior of disparate governmental officials, including local law enforcement and Homeland Security. In contrast, tort law is intended to regulate (for the most part) private citizens¿ interactions with one another.
[38] Second, as a part of the Bill of Rights, the Fourth Amendment was designed to be anti-majoritarian, whereas some conceptions of the privacy tort view it as reflecting majoritarian sentiments about how we should treat one another.
Third, whereas many of the critical issues upon which employee privacy depends in tort law are fact, or mixed questions of fact and law, the scope of Fourth Amendment privacy is ultimately a legal question.
[39] Thus, the judiciary may have more to say about the scope of Fourth Amendment privacy cases than tort privacy.
[40] Fourth, while the Fourth Amendment should be applied uniformly throughout the Nation, tort law has always been a more jury-based and decentralized medium for enforcing tort law.
[41]
VIII. Conclusion
It is ironic that today fourth amendment cases which have decimated employee privacy rely on the test formulated in Katz - a test which was intended to prevent law enforcement from making a technological end run around the Fourth Amendment.
--------------------------------------------------------------------------------
[1] See Kyllo, supra.
[2] U.S. v. Monroe, 52 M.J. 326 (CAAF 2000).
[3] 52 M.J. 326 (CAAF 2000).
[4] Id. at 330 (internal quotation marks and citation omitted).
[5] Thygeson v. U.S. Bancorp, 2004 U.S. Dist. LEXIS 18863 (D. Or. Sept. 15, 2004) (employee did not have a reasonable expectation of privacy in saved emails in his personal folder or in the websites he accessed, including the website he used to access his Netscape account, because the employer could access the information within its own system); Smyth v. Pillsbury Co., 914 F. Supp. 97, 101 (E.D. Pa. 1996) (same reasoning applied to intrusion tort involving employee computer use); Garrity v. John Hancock Mut. Life Ins. Co., 146 Lab. Cas. (CCH) P59,541 (D. Mass. 2002) (same as applied to state privacy statute);McLaren v. Microsoft Corp., 1999 Tex. App. LEXIS 4103 (same as applied to intrusion tort).
[6] Christopher Slobogin, Camera Surveillance of Public Places and the Right to Anonymity, 72 Miss. L. J. 213, 236, n. 106 (2002).
[7] See U.S. v. Lee, 359 F.3d 194 (3d Cir. 2004). But see dissenting opinion of Judge McKee arguing that this rationale does not justify third party video taping without evidence that the video tape captured no more than what the consenting party actually observed in a hotel room. Accord United States v. Ingram, 2005 U.S. Dist. LEXIS 5843 (S.D. Ind. March 25, 2005).
[8] 468 U.S. 705 (1984).
[9] Id. at 707. (Emphasis added).
[10] See e.g., Vega-Rodriguez v. Puerto Rico Tele. Co., 110 F.3d174 (1st Cir. 1997) (¿The bottom line is that since PRTC could assign humans to monitor the work station continuously without constitutional insult, it could choose instead to carry out that lawful task by means of unconcealed video cameras not equipped with microphones, which record only what the human eye could observe.¿); Thompson v. Johnson Community College, 930 F. Supp. 501, 507 (D. Kan. 1996) (holding that employee lacked reasonable expectation of privacy because the locker room was accessible to other employees), aff¿d, 108 F.3d 1388 (10th Cir. 1997) (Table Format); Kemp v. Block, 607 F. Supp. 1262, 1267 (D. Nev. 1985)(¿Court finds that the plaintiff knew that other persons could overhear. He, therefore, had no reasonable expectation of privacy.¿) (emphasis added); Thygeson v. U.S. Bancorp, 2004 U.S. Dist. LEXIS 18863 (D. Or. Sept. 15, 2004) (employee did not have a reasonable expectation of privacy in saved emails in his personal folder or in the websites he accessed, including the website he used to access his Netscape account, because the employer could access the information within its own system); Smyth v. Pillsbury Co., 914 F. Supp. 97, 101 (E.D. Pa. 1996) (same reasoning applied to intrusion tort involving employee computer use); Garrity v. John Hancock Mut. Life Ins. Co., 146 Lab. Cas. (CCH) P59,541 (D. Mass. 2002) (same as applied to state privacy statute); Sanders v. American Broadcasting Companies, Inc., 978 P.2d 67, 73-74 (1999)(¿[A]n employee may, under some circumstances, have a reasonable expectation of visual or aural privacy against electronic intrusion by a stranger to the workplace, despite the possibility that the conversations and interactions at issue could be witnessed by coworkers or the employer.¿ ); State v. McClellan, 744 A.2d 611, 614 (N.H. 1999)(secret video surveillance in classroom from 4 a.m. until 7:30 a.m. when janitor entered was an ¿area¿ which was ¿not a personal office. It was a classroom to which many people had access.¿); Brannen v. Bd. of Ed., Kings Local Sch. Dist., 761 N.E.2d 84, 91-92 (Ohio App. 2001) (janitors on night shift (6 p.m. - 6 a.m.) did not have a reasonable expectation of privacy from secret video taping of break room because it was ¿so open to fellow employees¿); Agnew v. Dupler, 717 A.2d 519, 523 (Pa. 1998)(holding that police officer lacked reasonable expectation of privacy in Police Chief¿s secret electronic monitoring from his office of conversations by employees in the squad room because other employees could overhear those conversations); McLaren v. Microsoft Corp., 1999 Tex. App. LEXIS 4103 (same as applied to intrusion tort).
[11] Karo, supra at 716, n. 4.
[12] John M. Junker, The Structure Of The Fourth Amendment: The Scope Of The Protection, 79 J. Crim. L. & Criminology 1105, 1128 (1989).
[13] United States v. Smith, 978 F.2d 171, 179-80 (5th Cir. 1992).
[14] 103 P.3d 923 (Colo. 2005).
[15] Galvadon, in Kee v. City of Hewlitt, 247 F.3d 206 (5th Cir. 2001).
[16] Id. at 215. See also State v. Christensen, 102 P.3d 789 (Wash. 2004) (applying similar multi-factorial test).
[17] 18 U.S.C. Sec. 2510(2).
[18] See Kee v. City of Hewlitt, 247 F.3d 206, 211 n. 8 (5th Cir. 2001) (¿The legislative history of this section demonstrates that Congress intended this definition of oral communication to parallel the reasonable expectation of privacy test set out in Katz¿); Dorris v. Absher, 179 F.3d 420, 424-25 (6th Cir. 1999) (implying plaintiff had to satisfy the Katz test but holding employees had a reasonable expectation of privacy in office bathroom); State v. Christensen, 102 P.3d 789 (Wash. Dec. 9, 2004) (holding daughter had reasonable expectation of privacy in phone call on cordless phone, even though Mother was in the kitchen listening to it by pressing down the speaker phone function; ¿We have repeatedly held that the mere possibility that intrusion on otherwise private activities is technologically feasible does not strip citizens of their privacy rights.¿).
[19] See Cross v. State, 49 F.3d 1490, 1508-9 (11th Cir. 1995); Angel v. Williams, 12 F.3d 786, 790 (8th Cir. 1993) (¿The Supreme Court in Katz set out the expectation-of-privacy test for Fourth Amendment purposes, and the corresponding test under Sec. 2510(2) would be ¿whether [the officers] expected [their] conversations to be free from interception, and whether, if [they] had this expectation, it was justified by the circumstances.¿"); Walker v . Darby, 911 F.2d 1573, 1579 (11th Cir. 1990) (¿We agree that there is a difference between a public employee having a reasonable expectation of privacy in personal conversations taking place in the workplace and having a reasonable expectation that those conversations will not be intercepted by a device which allows them to be overheard inside an office in another area of the building.¿); Boddie v. American Broadcasting Companies, Inc., 731 F.2d 333, 338 & 339 n. 5 (6th Cir. 1983); Turnbull v. American Broadcasting Co., 2004 U.S. Dist. LEXIS 24351 * 41 (C.D. Cal. Aug. 19, 2004) (under California law ¿Even though some of [the students¿] conversations could have been overheard by other students, . . . Plaintiffs in the instant case had a reasonable expectation that their conversations were not being recorded by ABC . . . ); Bowens v. Aftermath Entertainment, 254 F. Supp.2d 629, 638 (E.D. Mich. 2003); Sanders v. American Broadcasting Companies, Inc., 978 P.2d 67, 79 (Cal. 1999) (¿the proper question for the jury to decide was, indeed, whether plaintiff could reasonably expect he would not be secretly videotaped in his internal workplace interactions by a representative of the mass media.¿); State v. O¿Brien, 774 A.2d 89, 96 (R.I. 2001) (¿Athough we may expect individuals with whom we are communicating to hear and even to remember what we are saying (and perhaps how we have said it), we usually do not expect them to acquire surreptitiously an exact audio reproduction of the conversation that they can later replay at will for themselves or for others.¿); Bowyer v. Hi-Lad, Inc., 2004 W. Va. LEXIS 197 (W. Va. Dec. 3, 2004) (holding jury could properly find that hotel clerk, even though working in public area, had a reasonable expectation that his conversations were not being electronically recorded; ¿Most employees, even those working in "public" spaces, have a reasonable expectation that their oral communications with other employees or with customers are not going to be recorded by hidden microphones. The jury in the instant case could properly conclude that under the circumstances Mr. Bowyer was justified in expecting that his oral communications would not be subject to electronic interception.¿).
[20] Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971).
[21] See e.g., United States v. Jackson, 213 F.3d 1269, 1280 (10th Cir. 2000) (¿Whether Ms. Jackson can claim the FBI violated her Fourth Amendment rights by using these video cameras to observe the activity occurring outside the houses depends on whether Ms. Jackson had a reasonable expectation of privacy in the area viewed by the cameras.¿) (emphasis added); State v. McClellan, 744 A.2d 611, 614 (N.H. 1999)(secret video surveillance in classroom at night when janitor entered was an ¿area¿ which was ¿not a personal office. It was a classroom to which many people had access.¿).
[22] See Lauro v. Charles, 219 F.3d 202, 211 (2d Cir. 2000)(¿long standing Fourth Amendment jurisprudence [has] declined to set spatial boundaries on the rights protected by that amendment¿; finding video taping of arrestee while in public doing a staged perp walk infringe on his privacy); State v. Thomas, 642 N.E.2d 240, 244 (Ind. App. 1994) (¿The constitutional issue of whether a search occurred is not resolved simply by a determination that the scope of the surveillance was limited to the observation of transactions conducted during business hours in a public place.¿).
[23] Katz v. U.S., 389 U.S. 347, 353 (1967) (emphasis added).
[24] Id. at 351. As Justice Powell has written: ¿a standard that defines a Fourth Amendment search by reference to whether police have physically invaded a ¿constitutionally protected area¿ provides no real protection against surveillance techniques made possible through technology.¿ California v. Ciraolo, 476 U.S. 207, 281 (1986) (Powell, J., dissenting). Thus, the Katz test was ¿designed to ensure that the Fourth Amendment continues to protect privacy in an era when official surveillance can be accomplished without any physical penetration of or proximity to the area under inspection.¿ Dow Chemical Co. v. United States, 476 U.S. 227, 247 (1986 Powell, J., concurring in part and dissenting in part).
[25] U.S. v. Jackson, 588 F.2d 1046, 1052 (5th Cir. 1979). As the Senate reports in support of the Foreign Intelligence Surveillance Act expressed, even under the fourth amendment reasonable expectation of privacy test, two persons in ¿a public park, far from any stranger, would not reasonably anticipate that their conversations could be overheard from afar through a directional microphone, and so would retain their right of privacy.¿ Sen. Rep. No. 95-701 p. 37 (1978) and Sen. Rep. 95-604, p. 35 (1978).
[26] See Sherry F. Colb, What Is a Search? Two Conceptual Flaws in the Fourth Amendment Doctrine and Some Hints of a Remedy, 55 Stan. L. Rev. 119 (2002); John M. Junker, The Structure Of The Fourth Amendment: The Scope Of The Protection, 79 J. Crim. L. & Criminology 1105 (1989). See also United States v. White, 401 U.S. 745, 789-90 (1971) (Harlan, J., dissenting).
[27] Laurence H. Tribe, American Constitutional Law § 15-16, p. 1391 (2d ed. 1988).
[28] Christopher Slobogin, Camera Surveillance of Public Places and the Right to Anonymity, 72 Miss. L. J. 213, 270 (2002)(quoting Disa Sim, The Right to Solitude in the United States and Singapore: A Call for a Fundamental Reordering, 22 Loyala L.A. Ent. L. Rev. 443, 468 (2002)).
[29] Wayne R. LaFave, 1 Search and Seizure: A Treatise on the Fourth Amendment Secs. 2.4(b) & 2.7(b), pp. 638-39 & 736 (4th ed. 2004).
[30] Id. at Sec. 2.7(c), p. 747.
[31] 489 U.S. 749 (1989) (quoting Webster¿s dictionary). See Attachment C - Selective disclosure.
[32] Id. at 763-4.
[33] O¿Connor v. Ortega, 480 U.S. 709, 731-32 (1987) (Scalia, J., concurring), See also Karo, supra; LaFave, 1 Search and Seizure: A Treatise on the Fourth Amendment Sec. 2.1(d), p. 394 (3d ed. 1996) (noting ¿there is a dramatic difference, in privacy terms, between revealing bits and pieces of information sporadically to a small and often select group for a limited purpose and a focused police examination of the totality of that information regarding a particular individual.¿).
[34] Smith v. Md., 442 U.S. 735, 749-50 (Marshall, J., dissenting) (citations omitted).
[35] United States v. White, 401 U.S. 745, 785 (1971) (Harlan, J., dissenting).
[36] Sherry F. Colb, What Is a Search? Two Conceptual Flaws in the Fourth Amendment Doctrine and Some Hints of a Remedy, 55 Stan. L. Rev. 119, 173 (2002). See also id. at 124(noting that Kyllo, Ferguson, and Carter, may signal the ¿possibility that norm transgression will come to replace the flawed moves of ¿risk as invitation¿ and ¿partial exposure as total exposure¿ in defining the scope of Fourth Amendment privacy.¿).
[37] See, e.g., Sanders v. American Broadcasting Companies, 978 P.2d 67, 74, n. 3 (Cal. 1999) (¿Because of the special considerations involved in defining the private citizen's protection against intrusion by the government and the government's unique interest in investigating and suppressing criminal activity, decisions discussing employees' expectations of privacy against government searches are not directly applicable to the common law privacy tort context.¿).
[38] See Denver Publ. Co. v. Bueno, 54 P.3d 893, 897-88 (Colo. 2002).
[39] Muehler v. Mena, 125 S. Ct. 1465, 1470 n. 1 (2005)(¿In determining whether a Fourth Amendment violation occurred we draw all reasonable factual inferences in favor of the jury verdict, but as we made clear in Ornelas v. United States, 517 U.S. 690, 697-699, (1996), we do not defer to the jury's legal conclusion that those facts violate the Constitution.¿).
[40] See Attachment D - Allocation of judicial and jury functions.
[41] See Wilcher v. City of Wilmington, 139 F.3d 366, 380 (3d Cir. 1998) (holding that ¿the trial court incorrectly concluded, as a matter of law, that a reasonable Delawarean could not find the drug testing procedure "highly offensive," simply because the test might have passed muster under the Fourth Amendment.¿).