Larry Rosenthal, Binary Searches and the Central Idea of the Fourth Amendment
Comment by: Marc Blitz
Workshop draft abstract:
Many scholars and judicial decisions have identified privacy as the central value at the root of the Fourth Amendment’s prohibition on unreasonable search and seizure. Yet, the conception of Fourth Amendment privacy is deeply contested. Fourth Amendment jurisprudence has oscillated between competing conceptions of privacy. The libertarian conception argues that the Fourth Amendment works to identify a private domain free from unwarranted governmental intrusion, while the pragmatic conception sees privacy as a function of an effort to balance liberty against law enforcement interests.
Few cases force such a clear choice between these competing conceptions as Florida v. Jardines, in which the United States Supreme Court will decide whether the use of a drug-detection dog to determine whether a home contains contraband is considered a “search,” regulated for reasonableness under the Fourth Amendment. The use of a properly trained drug-detection dog is often characterized as a “binary search” because it discloses nothing other than the presence of absence of contraband. Deciding whether a binary search should be regarded as infringing a legitimate expectation of privacy is no small matter. Indeed, to decide Jardines, one is forced to choose between the libertarian and pragmatic conceptions of Fourth Amendment privacy. From a libertarian perspective, there is no stronger candidate for a private domain free from official scrutiny than the home. Yet, there are powerful pragmatic arguments against limiting the use of binary search techniques. A binary search discloses nothing of interest about the innocent; it reveals only that an individual has utilized the privacy of the home to break the law. The decision whether to treat a binary search as infringing an expectation of privacy that we should regard as legitimate accordingly reveals a great deal about our conceptions of privacy as a legal concept. This paper will explore what the binary search in general, and the Jardines decision in particular, tell us about the character of Fourth Amendment privacy.
William McGeveran, Privacy, Guns, and Neutral Principles
Comment by: Larry Rosenthal
Workshop draft abstract:
Among the policy debates that arose after the Newtown school shootings, many privacy-related issues appeared. We heard about restrictions on collection and use of data by federal authorities that had been championed by the National Rifle Association. Gun control advocates called for a more comprehensive database to use in background checks of gun purchasers. New York State passed a law increasing reporting requirements for mental health issues. A newspaper posted an online map identifying the homes of gun permit holders. Yet rhetoric often related more to a speaker’s position on underlying gun issues than to any consistent view of the privacy interests at stake. This article will explore the numerous and often quirky privacy rules around firearms. It will then seek to articulate consistent neutral principles for determining the boundaries of privacy interests.
Two major professional experiences prepare me well to take on this project. First, in the mid-1990s I worked extensively on gun control issues for members of Congress including then-Rep. Charles Schumer and for a gun control group. Second, since 2003 I have argued that campaign finance disclosure rules – another liberal cause célèbre – are too cavalier about individual privacy interests. With this background as an advocate of both gun control and privacy, I hope to develop a balanced approach to firearms-related data.
The paper will argue that there are some constitutional privacy concerns, and many additional features of privacy statutes and wise policy, that require restrictions on government collection and processing of data about firearms. At the same time, as the Supreme Court found in its landmark Whalen v. Roe decision, limited and secure government databases for important purposes are permissible, practical, and necessary. Along the way, I also hope to demonstrate how privacy doctrine has yet to generate robust neutral principles. Just as First Amendment doctrine protects diverse speakers on diverse topics, from soapbox orators to Nazi marchers, privacy rules must mature to the point where protection of personal information becomes an important goal, regardless of opinions about the persons or information involved.