Changing Expectations of Privacy and the Fourth Amendment

Abstract

This article draws on a presentation at the 2004 AALS Conference. It examines formal and informal studies of public opinions about privacy after September 11, 2001 attacks to suggest that fourth amendment law has likely changed as a result of the attacks on that date. This occurs largely because public attitudes play two roles in fourth amendment doctrine. First, expanded national security surveillance has decreased the collective "reasonable expectation of privacy" that triggers the fourth amendment. This makes fewer intrusions subject to the fourth amendment. Second, "reasonableness" is the primary requirement for the validity of a search or seizure, and the public seems prepared to accept many more intrusions as reasonable today than before September 2001. The extraordinary expansion in air security searches, with resulting loss of privacy for persons and personal effects, is the best example, but there are others, ranging from greater security at public and official buildings and events to biometric and other "smart" I.D. requirements. Finally, the article questions the impact of public reactions to the attacks on the legal status of racial and ethnic profiling. Courts and legislatures were moving toward invalidating such practices in the late 1990s. Since 2001, however, the Justice Department has separated law enforcement from national security, openly allowing racial profiling in the national security sphere.

Keywords: fourth amendment, September 11 attacks, reasonable expectation of privacy, polling data, video surveillance, electronic surveillance, data-mining, special needs searches, airport security, stop and frisk, reasonable suspicion, profiling

JEL Classification: K1