Property as Privacy: The Old Supreme Court Did It Better

by on September 11, 2010 · 3 comments

Up until I began doing my reading for this fall’s Criminal Procedure: Investigation course, I largely bought the heroic Warren Court story of privacy and the Fourth Amendment.

The story is simple: The Supreme Court, concerned only with helping businesses through decisions like Lochner, had left people unprotected from warrantless searches and seizures. In decisions like Olmstead v. United States (holding that a warrantless wiretap did not violate the Fourth Amendment), the Court threw privacy under the bus. But, as with the First Amendment, Brandeis and Holmes dissented, presaging the arrival of the glorious Warren Court, which overturned Olmstead in Katz v. United States.

Though, unlike many FedSocers, I love the Warren Court and its expansion and constitutionalization of personal liberties both procedural and substantive, the heroic story just isn’t quite right.

The tale has two problems. First, it lumps together the entire pre-Warren Court years as one big Bad Old Days of privacy. Second, it ignores the theories behind the decisions in pursuit of the results. The story’s troubles are interrelated.

In fact, back in 1886 – in a case called Boyd v. United States – the Supreme Court explained a theory of the Fourth Amendment that would be extremely protective of privacy. Haven’t heard of it? Neither had I. But its underlying message about the Fourth Amendment, which was hardly novel (indeed, the opinion traced it back to 18th century English cases), sounds like something a modern-day libertarian would write about privacy.

The case involved a statute requiring the owner of goods imported without paying the tariff to produce his records regarding the goods. This, the Court held, was an unreasonable search or seizure, in violation of the Fourth Amendment (and it compelled the defendant to give testimony againt himself, in violation of the Fifth Amendment). The reason was simple: the government had seized the defendant’s papers, which were his property. This made the case unlike the government seizing stolen goods to return to their rightful owners; that is not a “seizure” that deprives anyone of property rights. (And, the Court held, it did not matter that the law in question was not technically criminal, because the penalty for refusing to produce the papers was a default judgment, by which the goods would be forfeited. Yet another way the old Court was more “liberal” than the modern Court, which blindly accepts the “civil” designation legislatures stick on their penal statutes in order to evade the Constitution.) 

As subsequent cases such as Gouled v. United States made clearer, this holding did not apply just to papers, but to all property that was seized as “mere evidence” of the defendant’s guilt (not because the defendant was not entitled to the property).

But, concerned with the mere evidence rule’s effects on criminal investigations, the Court later weakened it and riddled it with exceptions. That trend explains the ruling in Olmstead, which had to explicitly limit Gouled to its facts. Olmstead faltered not because it refused to adopt a new conception of privacy but because it refused to adhere to the old. It held that, unlike a person’s mail, “the wires beyond his house and messages while passing over them are not within the protection of the Fourth Amendment.” Had the Court been true to Boyd, it would have noted that somebody owned those wires – perhaps the homeowner or perhaps the phone company, but certainly not the government – and the government searched and seized by trespass those wires by tapping them.

Katz came to the right outcome, but it should have arrived at restored Boyd to its full potential. Imagine what the Fourth Amendment would do today if it had. The Fourth Amendment would be no mere procedural protection, no simple rule of evidence, but a strong substantive limit on government. It may forbid, for example, net neutrality regulations that seize a company’s wires in order to achieve some supposedly socially desirable end. It may constitutionalize the principle of intervening action enshrined in Sec. 230, since the government cannot search or seize the papers of someone who has herself done no wrong and thereby forfeited her right to them. Best of all, it would go a long way to establishing in the minds of judges, politicans, and voters the best legal conception of privacy – privacy through property rights.

I’m not hopeful for such a big change. (The last time the Court really changed the fundamental theory behind a constitutional provision was in 2004, with the Confrontation Clause. And that revolution did not have the sweeping change in outcomes I’d expect from adopting a property approach to privacy.) But it’s interesting and useful to read cases from an era that got so much wrong to find one that came closer to getting it right than most legal scholars today.

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