The Multiple Dimensions of Privacy: Testing Lay 'Expectations of Privacy'

Abstract

Forty years of Fourth Amendment jurisprudence has explicitly relied on gauging "expectations of privacy" in helping to evaluate whether a search was reasonable. In making such evaluations, Courts look at a defendant's subjective expectation of privacy, as well as society's more objective understandings of social custom and of what might reasonably constitute an inappropriate interference in that privacy. Surprisingly little empirical research, however, has examined such perceptions of privacy, and most considers "privacy" a unitary, unidimensional construct.

In a pilot study here, we take a different approach to empirical assessing individuals' understandings and expectations of "privacy." To examine what factors enter into lay understandings of privacy, we used multidimensional scaling (MDS), a methodology explicitly designed to help identify underlying factors or dimensions that constitute broader variables, rather than focusing on ranking stimuli along a variable selected a priori. We empirically demonstrate the multidimensional nature of privacy, identifying three dimensions that constitute lay perceptions. Further, we show that both these dimensions, as well as overall perceptions of different types of law enforcement searches, are influenced by stimulus context.

Our findings make multiple contributions. First, we demonstrate the usefulness of another empirical methodology. Second, we discuss ways in which the dimensions we identify might influence Fourth Amendment doctrine. Third, we discuss our own ongoing research, and identify additional areas suggested by the current findings.

Keywords: criminal procedure, search and seizure, Fourth Amendment, multidimensional scaling, lay perceptions, law and psychology, methodology