369. "Let's Send Katz Packing." The National Law Journal (October 29, 2001) p A24.

The U.S. Supreme Court ruled last term, by the thinnest possible majority, that a bizarre concept once used to define privacy will also be projected into the new age of advanced law enforcement technologies.

Kyllo v. U.S. involves the use of a thermal-imaging device that enables the police to detect the unusual amount of heat emanating from a house in which a large amount of marijuana is being cultivated. (The police's suspicions were aroused by abnormal utility bills.) The court ruled that drawing on this technology constituted an unreasonable search -- because not many police or people are yet using the device. Whether or not you are a champion of the right to privacy, you may agree that is an odd argument.

No word on privacy

How did we get here? Privacy is not even mentioned in the Constitution. A constitutional right to privacy was fashioned very recently, in the mid-1960s. Those who favor its creation say it derives from a "penumbra" that surrounds the Constitution. Those less charitable speak of the right as being "constructed" or "concocted."

Neither side would disagree that the main court cases involved -- Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972) and Roe v. Wade (1973) -- deal with reproductive rights, with choice, which has nothing to do with what the rest of the world considers privacy. In all these cases the question is who should control the act, the state or the person (what lawyers call "decisional privacy"), and not whether the act is visible or audible to others not entitled to see or hear what you are doing or saying (what lawyers call "informational privacy" and the way most cultures understand the term).

It would make much more sense to consider decisional privacy a 14th Amendment matter (so that women's choices are treated the same as men's), and rest real privacy squarely on the Fourth Amendment. The Fourth Amendment is the one amendment that treats one's home as a castle. And, importantly, it has built into it the sense of balance the recent Supreme Court ruling on Kyllo is missing.

The Fourth Amendment does not categorically state, "Congress shall make no law allowing search and seizure." It states there be no unreasonable searches -- i.e., it recognizes on the face of it that there are circumstances in the public interest (safety, health) that require setting aside the right to privacy.

When this line is followed, the relevant questions for the courts are: How large is the intrusion -- e.g., are we screening blood or photographing a mug? And how great is the public need -- e.g., stopping a terrorist vs. arresting a peeping tom? But instead of asking these questions, the court since 1967 has asked rather what a reasonable person (and society) considers privacy to be.

The telling case is Katz v. U.S. Katz was a professional gambler who used a public phone booth to conduct his illegal business. The FBI planted a listening device in the booth and a court convicted him. On appeal, the supremes threw out the conviction on the ground that Katz "expected" privacy, and hence his expectation was violated.

Numerous law professors have pointed out that this ruling makes little sense. If the court were to have ruled that Katz had no reasonable expectation of privacy in a public phone booth, no reasonable person would have demurred. Also, how is a judge to apply this criterion without a social science survey of what people consider reasonable?

Maybe in an earlier age a judge could have examined her own feelings to establish what the community held. But in contemporary, diversified society, which reasonable person are we talking about? Those in the immediate community (Little Havana)? The region (Southern Florida)? The whole state? The entire United States of America?

Odd conclusions

Above all, Katz leads the court to such odd conclusions as in Kyllo. If the police rarely use a device, it is unexpected and therefore disallowed, but if they were to use it often (I guess without first using it sparingly), the gadget would become legally kosher. (This point was made by Justice Antonin Scalia.)

This is like saying that if I illicitly open one of your letters, it's a scandal; if I open them all, it's OK. True, you might well get accustomed to my snooping -- but this would not enhance or protect your privacy one bit.

You may say, "Come on, most anybody would agree that new devices that can 'read' what we are cooking in the privacy of our homes are offensive to privacy."

But the police were reading the heat that emanated outside the building. If you were to shout to your wife so loudly that you could be heard on the street: "OK, I confess, I killed your mother!" would you then claim that the police should not be allowed to use this information because it came from inside your castle?

True, we face ever more intrusive devices. Soon authorities will be able to hear what we say indoors even if we merely whisper, and see what we have underneath our garments even when we are fully clothed. But Katz will not protect us from this invasion -- as long as the public is widely informed about these new technologies. (You are herewith put on notice).

And if those who break the law are allowed to use new technologies -- from passwords to voice modifiers to electronic encryption -- why should the police remain marooned in the previous century?

So we come back to the essential question of balance.

Marijuana or bombs

Many might argue that growing marijuana is a serious enough offense to merit the thermal imaging of our homes. But what if, instead, bombs are being made in the basement, and the smell of the explosives seeps into the street? Surely here, if we apply the sense of balance at the core of the Fourth Amendment -- and forget about the unfortunate precedent of Katz -- we would conclude that there should be not blanket prohibitions on the use of thermal imaging and other new technologies.

Indeed, conducting a search if the public interest is compelling, and if the intrusion is minimal (say no more than measuring heat coming out of the roof), is, in my book, about as good a definition of reasonableness as they come.

It is as constitutional as the Fourth Amendment, which should do for now.

Amitai Etzioni, a professor at George Washington University, is the author of The Limits of Privacy (Basic Books, 1999) and, most recently, The Monochrome Society (Princeton University Press, 2001).

The Communitarian Network
2130 H Street, NW, Suite 703
Washington, DC 20052