Marc Blitz, The Law and Political Theory of “Privacy Substitutes”

The article explores the question of when the government officials should in some cases be permitted to take measures that lessen individuals’ informational privacy – on the condition that they in some sense compensate for it “in kind” – either by (i) recreating this privacy in a different form or (ii) providing individuals with some other kind of legal protection which assures, for example, the information disclosed by the government will not be used to impose other kinds of harm.

My aim in the article is to make three points.  First, I explore the ways in which the concept of a privacy substitute already plays a role in at least two areas of Fourth Amendment law:

1. The case law on “special needs” and administrative searches, which discusses when “constitutionally adequate substitute[s]” for a warrant (to use the language of New York v. Burger (1987)) or statutory privacy protections (such as those in the DNA act), may compensate for the absence of warrant- or other privacy safeguards and
2. cases holding that certain technologies which allow individuals to gather information from a private environment (such as a closed container) might be deemed “non-searches” if the technologies have built-in limitations assuring that they do not gather information beyond that information about the presence of contraband material or other information in which there is no “reasonable expectation of privacy” under the Fourth Amendment.

In each of these cases, I argue, courts have relied on certain assumptions – some of them problematic – about when certain kinds of statutory, administrative, or technological privacy protections may be substituted for more familiar constitutional privacy protections such as warrant requirements.

Second, I argue that, while such cases have sometimes set the bar too low for government searches, “privacy substitutes” of this sort can and should play a role in Fourth Amendment jurisprudence, and also perhaps in First Amendment law on anonymous speech and other constitutional privacy protections.  In fact, I will argue, there are situations where technological developments may make such “privacy substitutions” not merely helpful to saving certain government measures from invalidation, but essential for replacing certain kinds of privacy safeguards that would otherwise fall victim to technological changes (such as advances in location tracking and video surveillance technology which undermine the features of the public environment individuals could previously rely upon to find privacy in public settings).

Third, focusing on the example of protections for anonymous speech in First Amendment law, I explore under what circumstances government should, in some cases, be permitted to replace privacy protections not with new kinds of privacy protection, but rather with other legal measures that serve the same end — for example, measures that provide the liberty, or sanctuary from retaliation, that privacy is sometimes relied upon for.