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]  

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