This week and next week focus on the extent to which privacy places a limitation on the government, particularly the enforcement of criminal laws by the government. This includes mail, homes, places of business, and phone conversations. It shapes checkpoints, stop-and-frisk policies, travel on planes and public transportation, wiretaps, and bugging devices. The range is very far reaching and the materials are introductory. Please identify one of these areas in which privacy may or may not limit governmental enforcement of criminal laws. Explain the rule and discuss the consequence to the rule in terms of security, criminal enforcement, and privacy values.
The reasonable expectation of privacy test arose in Katz v. United States in 1967. The test has been incorporated into state laws and state common law. Professor Eugene Volokh explains that “the nature of the Katz “reasonable expectation of privacy” inquiry is normative, not descriptive: The Court says what is a search. What reasonable people actually expect to happen as an empirical matter is not part of the test, except in some very limited ways. … [T]he Court normally doesn’t apply Katz by imagining what a reasonable person would anticipate occurring in a particular situation. And that makes sense: The question is what counts as a government search, not what counts as a government surprise.”
Identify one example of a case or rule enforcing the reasonable expectation of privacy and discuss the extent to which it does or does not match what you believe the public would really expect to happen.
Daniel Solove writes in the Casebook (p. 51) that there are six categories of purposes for privacy: (1) the right to be let alone; (2) the right to shield oneself from unwanted access from others; (3) secrecy; (4) control over personal information; (5) personhood; and (6) intimacy. This may the correct list, or there may be other core purposes. Please take one of these six purposes or add an additional purpose of your own. Discuss how the readings throughout the chapter and semester have developed your ideas about privacy and the role of law and self-regulation to shape privacy in the United States.
