My Reasonable Expectation of Privacy

Constitution Daily had an article that said this:

It actually was a then-new form of technology that both Justices Harlan and Black were dealing with in that 1967 case: Katz v. United States.  The FBI had developed the capacity to install, surreptitiously, a listening device on a public telephone booth, and a suspect who used that booth to place illegal bets – Charles Katz — argued that he had closed the door of the booth behind him, and thus expected to shut out the world when he telephoned.

The Supreme Court agreed (with only Justice Black dissenting), and declared that the Fourth Amendment “protects people, not places.”  From that time until now, the court has relied upon Justice Harlan’s formula about privacy expectations and society’s acceptance (or failure to accept) those expectations as it continues to interpret the Fourth Amendment.

In a 1979 case – the one that Judge Leon, in the quotation above, was discussing — the court ruled that society did not accept as a reasonable form of privacy the records that a telephone company keeps of calls that its customers make  The customers, it decided, voluntarily gave up to the telephone company the information about whom they called.  So, the court said, the police could use that data to track down suspected criminal Michael Lee Smith..

The Supreme Court statement that said the Fourth Amendment “protects people, not places” is asinine on the face of it. Can one separate the person from the place when talking about unreasonable searches and seizures? There is a linkage between the two whether the Supreme Court believes it or not.

People have the right to be anonymous in public places as assuredly as the government has a right to protect its secrets in public committee hearings. To deny the former while embracing the latter is hypocritical and condescending.

My expectations of privacy are:

1. My communication is not monitored, stored, reviewed, nor analyzed by any government person or tool unless one of three conditions are occurring: a) I am conducting my business with the government or its agencies and there is a need to corroborate or give credence to my assertions of fact, b) someone I may know is under investigation and I am a “friend of a friend”. If so, then a fuller and broader review of my actions/knowledge is warranted, c) I am under investigation myself for my actions.

In the first instance, my permission is required, in the second the government’s review cannot exceed 30 days without obtaining a warrant and the third instance always requires a warrant.

In the first instance, information retrieved that is outside the nature of my business is to be destroyed (and unrecoverable by others) within 30 days. In the second, at the end of a 30-day review, all information is destroyed unless a warrant has been issued to investigate me for crimes. In the third instance,  information gleaned that is not presented at trial, or is not directly related to the investigation, is destroyed within two years and is unrecoverable by others.

My expectations for personal privacy include the monitoring cameras in public places like highways, streets, public venues, and business security cameras for open-to-the-public events.I should not be identified and my movements not traced unless as part of an active criminal investigation with John Doe warrants issued. Unless they are registered as part of an active investigation, original videos (and copies of same) of any public place should be destroyed within one year of their creation.

These are reasonable expectations of privacy. I am the person the Fourth Amendment was referring to. Not my home, my car, or my telephone booth. Any place that I am, so is the Fourth Amendment. It is like a force field that repels government intrusion of me, what I am doing, and where I am going. It covers my interactions with the world from telephones and internet usage as well as conversations at the local bakery.