Privacy Rights/Limitations - Restrictions/Jurisprudence: Difference between revisions
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|questionHeading=Under American jurisprudence, what permissible exceptions exist? | |questionHeading=Under American jurisprudence, what permissible exceptions exist? | ||
|pageLevel=Question | |pageLevel=Question | ||
|contents=The Fourth Amendment states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” ([[Probable year::1791]]) . While this amendment protects the right to privacy from the government, it also brings forth exceptions: reasonable search and seizure as well as infringements allowed by court-issued warrants seeking specific items or people. Other amendments used to extend privacy by the Supreme Court, namely the First, Third, Fifth, Ninth, and Fourteenth, do not have notable exceptions regarding privacy. | |contents=The Fourth Amendment states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” ([[Probable year:: 1791]]) . While this amendment protects the right to privacy from the government, it also brings forth exceptions: reasonable search and seizure as well as infringements allowed by court-issued warrants seeking specific items or people. Other amendments used to extend privacy by the Supreme Court, namely the First, Third, Fifth, Ninth, and Fourteenth, do not have notable exceptions regarding privacy. | ||
Limitations of Reasonability | Limitations of Reasonability | ||
Defining what constitutes a reasonable search has proven to be difficult. In Katz v. United States ([[Probable year::1967]]) the Supreme Court ruled the Fourth Amendment protects “people, not places” and created the Katz test to determine where it is reasonable to expect privacy from law enforcement and a warrant is needed (Katz v. United States, [[Probable year::1967]]) . This test examines whether the information was meant to be kept private and if it had been disclosed (Hu, [[Probable year::2018]], 129). Prior to the Katz test, the court used the trespass test, a common-law approach to the Fourth Amendment in which physical intrusion can violate the Fourth Amendment. Fifty years after Katz, the Court again relied on the trespass test in United States v. Jones (Hu, [[Probable year::2018]], 130; United States v. Jones, [[Probable year::2012]]) . In doing so, the court claimed while the Katz test extended the right to privacy to people, it did not revoke the traditional common-law protections (United States v. Jones, [[Probable year::2012]]) . Hu, citing Justices Sotomayor and Alito, feels that the Katz test ends before cyber-surveillance begins and recognizes the need for change (Hu, [[Probable year::2018]], 139, 141). | Defining what constitutes a reasonable search has proven to be difficult. In Katz v. United States ([[Probable year:: 1967]]) the Supreme Court ruled the Fourth Amendment protects “people, not places” and created the Katz test to determine where it is reasonable to expect privacy from law enforcement and a warrant is needed (Katz v. United States, [[Probable year:: 1967]]) . This test examines whether the information was meant to be kept private and if it had been disclosed (Hu, [[Probable year:: 2018]], 129). Prior to the Katz test, the court used the trespass test, a common-law approach to the Fourth Amendment in which physical intrusion can violate the Fourth Amendment. Fifty years after Katz, the Court again relied on the trespass test in United States v. Jones (Hu, [[Probable year:: 2018]], 130; United States v. Jones, [[Probable year:: 2012]]) . In doing so, the court claimed while the Katz test extended the right to privacy to people, it did not revoke the traditional common-law protections (United States v. Jones, [[Probable year:: 2012]]) . Hu, citing Justices Sotomayor and Alito, feels that the Katz test ends before cyber-surveillance begins and recognizes the need for change (Hu, [[Probable year:: 2018]], 139, 141). | ||
In analyzing Fourth Amendment Supreme Court rulings, Orin Kerr found that four general models have been used to decide privacy cases ([[Probable year::2017]], 524). These models vary in scale (micro or macro) and normativity (normative or descriptive) and consider one of the following: how public the information is, what information was found, the actions that were taken, or whether or not government conduct should be regulated (Kerr, [[Probable year::2017]], 506, 524). Kerr claims the last of these considerations was the basis for the Katz ruling ([[Probable year::2017]], 519). Unfortunately, the Supreme Court has used all four of these models to both protect and deny privacy and has not provided clear guidance as to what is a reasonable search (Ker, [[Probable year::2017]], 507, 508). Kerr concludes by suggesting there is no one size fits all test or model because of the importance of case facts ([[Probable year::2017]], 525). As such, Kerr would rather see many definitive models so that the limitations of reasonability are clear and contextualized for future court decisions at all levels ([[Probable year::2017]], 542). | In analyzing Fourth Amendment Supreme Court rulings, Orin Kerr found that four general models have been used to decide privacy cases ([[Probable year:: 2017]], 524). These models vary in scale (micro or macro) and normativity (normative or descriptive) and consider one of the following: how public the information is, what information was found, the actions that were taken, or whether or not government conduct should be regulated (Kerr, [[Probable year:: 2017]], 506, 524). Kerr claims the last of these considerations was the basis for the Katz ruling ([[Probable year:: 2017]], 519). Unfortunately, the Supreme Court has used all four of these models to both protect and deny privacy and has not provided clear guidance as to what is a reasonable search (Ker, [[Probable year:: 2017]], 507, 508). Kerr concludes by suggesting there is no one size fits all test or model because of the importance of case facts ([[Probable year:: 2017]], 525). As such, Kerr would rather see many definitive models so that the limitations of reasonability are clear and contextualized for future court decisions at all levels ([[Probable year:: 2017]], 542). | ||
Privacy Violations by a Non-Government Entity | Privacy Violations by a Non-Government Entity | ||
The Supreme Court has rarely ruled on notable cases in which the privacy offender was not a government entity. However, in Senn v. Tile Layers Protective Union ([[Probable year::1937]]) the Court ruled that Senn could not invoke his privacy in work against the right to publicity of the union’s picketing (Richards, [[Probable year::1334]]) . In the opinion of the Court, Justice Brandeis held that because it was a commercial dispute and affected the competition for customers, the right to privacy was not applicable (Richards, [[Probable year::1334]]) . He also protected counter-speech in this opinion (Richards, [[Probable year::1334]]) . | The Supreme Court has rarely ruled on notable cases in which the privacy offender was not a government entity. However, in Senn v. Tile Layers Protective Union ([[Probable year:: 1937]]) the Court ruled that Senn could not invoke his privacy in work against the right to publicity of the union’s picketing (Richards, [[Probable year:: 1334]]) . In the opinion of the Court, Justice Brandeis held that because it was a commercial dispute and affected the competition for customers, the right to privacy was not applicable (Richards, [[Probable year:: 1334]]) . He also protected counter-speech in this opinion (Richards, [[Probable year:: 1334]]) . | ||
Resources | Resources | ||
Hu, M. ([[Probable year::2018]]) . Cybersurveillance intrusions and an evolving Katz privacy test. American Criminal Law Review 55(1), 127-152. https://www.law.georgetown.edu/american-criminal-law-review/in-print/volume-55-issue-1-winter-[[Probable year::2018]]/ cybersurveillance-intrusions-and-an-evolving-katz-privacy-test/ | Hu, M. ([[Probable year:: 2018]]) . Cybersurveillance intrusions and an evolving Katz privacy test. American Criminal Law Review 55(1), 127-152. https://www.law.georgetown.edu/american-criminal-law-review/in-print/volume-55-issue-1-winter-[[Probable year:: 2018]]/ cybersurveillance-intrusions-and-an-evolving-katz-privacy-test/ | ||
Katz v. United States, 389 U.S. 347 ([[Probable year::1967]]) . https://www.law.cornell.edu/supremecourt/text/389/347 | Katz v. United States, 389 U.S. 347 ([[Probable year:: 1967]]) . https://www.law.cornell.edu/supremecourt/text/389/347 | ||
Kerr, O. ([[Probable year::2007]]) . Four models of Fourth Amendment protection. Stanford Law Review 60(2), 503-552. http://www.stanfordlawreview.org/wp-content/uploads/sites/3/[[Probable year::2010]]/ 04/Kerr.pdf | Kerr, O. ([[Probable year:: 2007]]) . Four models of Fourth Amendment protection. Stanford Law Review 60(2), 503-552. http://www.stanfordlawreview.org/wp-content/uploads/sites/3/[[Probable year:: 2010]]/ 04/Kerr.pdf | ||
Richards N.M. ([[Probable year::2010]], Oct.). The puzzle of Brandeis, privacy, and speech. Vanderbilt Law Review 63(5) [[Probable year::1293]]- [[Probable year::1352]]. https://scholarship.law.vanderbilt.edu/vlr/vol63/iss5/3/ | Richards N.M. ([[Probable year:: 2010]], Oct.). The puzzle of Brandeis, privacy, and speech. Vanderbilt Law Review 63(5) [[Probable year:: 1293]]- [[Probable year:: 1352]]. https://scholarship.law.vanderbilt.edu/vlr/vol63/iss5/3/ | ||
United States Constitution. [[Probable year::1787]]. https://www.senate.gov/civics/constitution_item/constitution.htm | United States Constitution. [[Probable year:: 1787]]. https://www.senate.gov/civics/constitution_item/constitution.htm | ||
United States v. Jones, 565 U.S. 400 ([[Probable year::2012]]) . https://www.law.cornell.edu/supremecourt/text/10-[[Probable year::1259]] | United States v. Jones, 565 U.S. 400 ([[Probable year:: 2012]]) . https://www.law.cornell.edu/supremecourt/text/10-[[Probable year:: 1259]] | ||
}} | }} | ||
Revision as of 22:12, 28 December 2022
Under American jurisprudence, what permissible exceptions exist?
The Fourth Amendment states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (1791) . While this amendment protects the right to privacy from the government, it also brings forth exceptions: reasonable search and seizure as well as infringements allowed by court-issued warrants seeking specific items or people. Other amendments used to extend privacy by the Supreme Court, namely the First, Third, Fifth, Ninth, and Fourteenth, do not have notable exceptions regarding privacy.
Limitations of Reasonability
Defining what constitutes a reasonable search has proven to be difficult. In Katz v. United States (1967) the Supreme Court ruled the Fourth Amendment protects “people, not places” and created the Katz test to determine where it is reasonable to expect privacy from law enforcement and a warrant is needed (Katz v. United States, 1967) . This test examines whether the information was meant to be kept private and if it had been disclosed (Hu, 2018, 129). Prior to the Katz test, the court used the trespass test, a common-law approach to the Fourth Amendment in which physical intrusion can violate the Fourth Amendment. Fifty years after Katz, the Court again relied on the trespass test in United States v. Jones (Hu, 2018, 130; United States v. Jones, 2012) . In doing so, the court claimed while the Katz test extended the right to privacy to people, it did not revoke the traditional common-law protections (United States v. Jones, 2012) . Hu, citing Justices Sotomayor and Alito, feels that the Katz test ends before cyber-surveillance begins and recognizes the need for change (Hu, 2018, 139, 141).
In analyzing Fourth Amendment Supreme Court rulings, Orin Kerr found that four general models have been used to decide privacy cases (2017, 524). These models vary in scale (micro or macro) and normativity (normative or descriptive) and consider one of the following: how public the information is, what information was found, the actions that were taken, or whether or not government conduct should be regulated (Kerr, 2017, 506, 524). Kerr claims the last of these considerations was the basis for the Katz ruling (2017, 519). Unfortunately, the Supreme Court has used all four of these models to both protect and deny privacy and has not provided clear guidance as to what is a reasonable search (Ker, 2017, 507, 508). Kerr concludes by suggesting there is no one size fits all test or model because of the importance of case facts (2017, 525). As such, Kerr would rather see many definitive models so that the limitations of reasonability are clear and contextualized for future court decisions at all levels (2017, 542).
Privacy Violations by a Non-Government Entity
The Supreme Court has rarely ruled on notable cases in which the privacy offender was not a government entity. However, in Senn v. Tile Layers Protective Union (1937) the Court ruled that Senn could not invoke his privacy in work against the right to publicity of the union’s picketing (Richards, 1334) . In the opinion of the Court, Justice Brandeis held that because it was a commercial dispute and affected the competition for customers, the right to privacy was not applicable (Richards, 1334) . He also protected counter-speech in this opinion (Richards, 1334) .
Resources
Hu, M. (2018) . Cybersurveillance intrusions and an evolving Katz privacy test. American Criminal Law Review 55(1), 127-152. https://www.law.georgetown.edu/american-criminal-law-review/in-print/volume-55-issue-1-winter-2018/ cybersurveillance-intrusions-and-an-evolving-katz-privacy-test/ Katz v. United States, 389 U.S. 347 (1967) . https://www.law.cornell.edu/supremecourt/text/389/347 Kerr, O. (2007) . Four models of Fourth Amendment protection. Stanford Law Review 60(2), 503-552. http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/ 04/Kerr.pdf Richards N.M. (2010, Oct.). The puzzle of Brandeis, privacy, and speech. Vanderbilt Law Review 63(5) 1293- 1352. https://scholarship.law.vanderbilt.edu/vlr/vol63/iss5/3/ United States Constitution. 1787. https://www.senate.gov/civics/constitution_item/constitution.htm United States v. Jones, 565 U.S. 400 (2012) . https://www.law.cornell.edu/supremecourt/text/10-1259