A Defense of Privacy as the Central Value Protected by the Fourth Amendment's Prohibition on Unreasonable Searches

Abstract

Katz v. United States and the accompanying turn to privacy as the lodestar of Fourth Amendment analysis have been the target of heavy criticism. The privacy standard is said to be contrary to Fourth Amendment language, history and precedent, overly elastic and thus conducive to judicial activism in either direction, and inadequate at capturing what the Fourth Amendment is really about. But the proposed alternatives to the privacy standard — ranging from a focus on property, dignity, liberty or information control to a right to security from government coercion — all have their own flaws, and in any event can almost all fit comfortably within the privacy rubric. Privacy’s capaciousness, together with its alienability, its amenability to measurement, and its scalar nature, can maximize the Fourth Amendment’s flexibility in dealing with the regulatory challenges posed by both traditional and modern law enforcement practices.

Keywords: Katz, privacy, Fourth Amendment