NEGATIVE - SEARCH AND SEIZURE - CASE TURNS 439
PRIVACY APPROACH TO SEARCH AND SEIZURE ONLY MAKES THINGS WORSE
A BROAD PROTECTION OF PRIVACY WOULD THROW THE LEGAL SYSTEM INTO CONSTITUTIONAL CRISIS
William J. Stuntz, Professor of Law, University of Virginia, PRIVACY'S PROBLEM AND THE LAW OF CRIMINAL PROCEDURE, Michigan Law Review, March, 1995, 93 Mich. L. Rev. 1016, EE2001-JGM, P.1048
Perhaps that incompatibility should be resolved by protecting privacy more, across the board. But this solution would involve a huge cost to the current constitutional order; it would require revisiting the accommodation between law and politics that has served for the past fifty years. Nor is this just a matter of costs. The fact that informational privacy seems to count for so little outside criminal investigation may suggest that it counts for little in our collective preferences. The law's tolerance of privacy harms inflicted by the regulatory state, inflicted on even (especially?) the politically powerful, implies that keeping secrets from the government is not as important a value as Fourth and Fifth Amendment rhetoric suggests. If we could start over, perhaps privacy would not receive constitutional protection anywhere. The anomaly may be criminal procedure, not the regulatory state.
A BROAD PROTECTION OF PRIVACY IN SEARCH AND SEIZURE CREATES TWO DISTASTEFUL ALTERNATIVES
William J. Stuntz, Professor of Law, University of Virginia, PRIVACY'S PROBLEM AND THE LAW OF CRIMINAL PROCEDURE, Michigan Law Review, March, 1995, 93 Mich. L. Rev. 1016, EE2001-JGM, P.1055
Making the protection conditional, however, cannot solve the problem. A police officer must have probable cause or consent before he may inspect the trunk of my car for drugs. But the government can force me to disclose pretty much anything it wishes on my tax forms. Consistent privacy protection, even if subject to interest balancing, could not reach these results. The lesson seems clear. Any attempt to give the same weight to individuals' interest in keeping the government from seeing things, across the board, must end in one of two ways: either a great deal of ordinary government activity must be subject to searching judicial review, or privacy-based restrictions on police searches must be drastically reduced. Neither alternative seems palatable.
BROAD PROTECTION OF PRIVACY WOULD CREATE A MORE SERIOUS PROBLEM THAN WOULD BE SOLVED
William J. Stuntz, Professor of Law, University of Virginia, PRIVACY'S PROBLEM AND THE LAW OF CRIMINAL PROCEDURE, Michigan Law Review, March, 1995, 93 Mich. L. Rev. 1016, EE2001-JGM, P.1047-48
This problem casts an interesting light on the typical academic complaint about the law of criminal investigation. A large amount of Fourth Amendment commentary attacks the basic hypocrisy within the law of criminal procedure. The system takes privacy very seriously in some settings - house searches, for example - but offers almost no privacy protection in others, such as requests for bank or phone records. The standard theme of this literature is that the law should take house searches as a model, that it should abandon its hypocrisy by giving privacy substantial protection across the board. n104 Yet even if the critics' wishes were answered, a much [*1048] larger and more serious conflict would appear: the different constitutional treatment of privacy in the criminal and civil spheres. There is little point to resolving the smaller conflict unless the larger one can be resolved as well. Indeed, the two may be closely related. A major source of the conflicts within criminal procedure may be the effort to avoid the more basic difficulty - the seeming incompatibility of the modern administrative state and serious protection for informational privacy.
THERE IS AN ENORMOUS COST IN PROTECTING PRIVACY IN SEARCH AND SEIZURE
William J. Stuntz, Professor of Law, University of Virginia, PRIVACY'S PROBLEM AND THE LAW OF CRIMINAL PROCEDURE, Michigan Law Review, March, 1995, 93 Mich. L. Rev. 1016, EE2001-JGM, P.1035
That, in a nutshell, is the substantive problem with protecting the kinds of privacy interests we claim to protect in search and seizure cases. Wherever the regulatory state engages in any form of compelled information gathering (and it does so everywhere), there is an enormous cost to taking privacy interests seriously: doing so requires judicial judgments about whether one regulatory path is more reasonable than another. That sounds uncomfortably close to the regime that the Supreme Court sought to bury a half-century ago.
FOCUSING ON GOVERNMENT INTRUSIONS MAKES FUTURE INTRUSIONS SEEM LESS INTRUSIVE
Scott E. Sundby Professor of Law, Washington & Lee School of Law, "EVERYMAN" 'S FOURTH AMENDMENT: PRIVACY OR MUTUAL TRUST BETWEEN GOVERNMENT AND CITIZEN? Columbia Law Review, October, 1994, 94 Colum. L. Rev. 1751 , EE2001-JGM, P.1758
Likewise, to the extent the Court attempts to guard Fourth Amendment privacy interests by looking to the degree of the government's intrusion on privacy (the more intrusive the invasion, the greater the government justification that is needed), the increased intrusions on our everyday privacy will make any particular government action seem less intrusive in comparison and thus require less of a justification. n34 If an individual's privacy is already largely abrogated, any additional privacy intrusions will appear to be only incremental by comparison n34. The problem might be thought of in terms of a mathematical metaphor: if the numerator is the degree of the challenged government intrusion on privacy and the denominator is the degree of all intrusions on individual privacy, as the denominator of overall intrusions increases, the comparative value of the numerator's intrusion decreases.
CURRENT FOURTH AMENDMENT LAW PROTECTS AGAINST SMALL INTRUSIONS OF PRIVACY WHILE ALLOWING LARGER INTRUSIONS
William J. Stuntz, Professor of Law, University of Virginia, PRIVACY'S PROBLEM AND THE LAW OF CRIMINAL PROCEDURE, Michigan Law Review, March, 1995, 93 Mich. L. Rev. 1016, EE2001-JGM, P.1017-18
Broad restraints on government power are more problematic today. Current Fourth and Fifth Amendment law seems to deal with the problem through a series of special rules or exceptions, doctrines that treat some privacy intrusions as if they just don't count. "Regulatory search" cases allow government searches of businesses with little or no suspicion of misconduct, n9 giving the government much more leeway when enforcing fairly trivial regulations than it has when enforcing laws against rape or murder. "Required records" cases allow the government to compel concededly incriminating disclosures via civil regulatory statutes; n10 once again this doc- [*1019] trine gives the government greater power when enforcing run-of-the-mill regulations than when investigating serious crime. Finally, the "reasonable expectation of privacy" doctrine permits police officers to uncover the details of a suspect's finances n11 or phone calls, n12 even though the same doctrine reaffirms and constitutionally protects the privacy of lunch bags, n13 cigarette packets, n14 and the underside of stereos. n15 No plausible balancing of government need against individual privacy interests can explain these results. Instead, they are best understood as the inevitable consequence of the conflict between privacy-based criminal procedure and the constitutional revolution of the 1930s. In light of that conflict, it is hard to see which side in these disputes is "liberal" and which is "conservative": broader protection of privacy (the supposedly liberal stance) is the road back to the Four Horsemen, while reduced privacy protection (the "conservative" view) guards the integrity of the 1937 revolution.