Privacy rights

By Kate Michelman, President Emerita of NARAL Pro-Choice America and author of With Liberty and Justice for All: A Life Spent Protecting the Right to Choose. 

When Roe v Wade became law of the land, we who had fought for so long believed it would be the threshold of broader protection of women’s health — of women’s rights. In our exuberance, we thought that we could establish abortion in its proper context, along the continuum of women’s reproductive health decision-making. We thought we could move on to other pressing health and equality issues, including bringing sexuality education to adolescents throughout the country — to help our young people understand the complexities of sexuality, of contraception and of the serious responsibility of childbearing.

That was almost forty years ago.

In the meantime we’ve learned the numbing lesson that what Justice Harry Blackmun wrote was not close to the final declaration of women’s reproductive liberty. It was not the beginning of the public’s embrace of educating our young to enable them to make responsible and informed decisions regarding sex and reproductive health. And it was certainly not an opening to the broad cast of reproductive options.

Instead of opening a dialogue that might ultimately lead to wide consensus about healthy reproductive choices, healthy sexuality, and healthy families, we have instead witnessed religious and culturally conservative voices demanding reversal. We are confronted with the word “abortion” writ red on walls wherever we turn. The opponents of abortion don’t want to discuss the social conditions that led to that decision. They talk of family values but those values seem not to include compassion, logic, or the willingness (ironically) to reach some obvious common ground with those of us who have long struggled to lessen the need for abortion by reducing unintended pregnancies. 

By Daniel J. Solove. Solove is the John Marshall Harlan Research Professor of Law and the George Washington University Law School. He is the author of Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale 2011).

The Supreme Court has long held that there is no expectation of privacy in public for the purposes of the Fourth Amendment.  Because the Fourth Amendment turns on the existence of a reasonable expectation of privacy, the Court’s logic means that the Fourth Amendment provides no protection to surveillance in public.  In United States v. Jones, the Court will confront just how far this logic can extend.  FBI agents installed a GPS tracking device on Jones’ car and monitored where he drove for a month without a warrant.  Jones challenged the warrantless GPS surveillance as a violation of the Fourth Amendment.  The D.C. Circuit agreed with Jones.  United States v. Jones, 615 F.3d 544 (D.C. Cir. 2010).  Other federal circuit courts have reached conflicting conclusions on GPS, and now the Supreme Court will resolve the conflict. 

Will the Court revisit its view about the lack of privacy in public given the changing capabilities of technology?  Or will it follow its tortured logic to the end, and maintain its wooden and antiquated rule of no expectation of privacy in public? 

On its face, the D.C. Circuit opinion appears to clash with the Supreme Court’s decision in United States v. Knotts, 460 U.S. 276 (1983), where the police installed a much simpler tracking device (referred to as a “beeper”) to a person’s car.  The Court concluded that the Fourth Amendment did not apply to the beeper because a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.”

The D.C. Circuit distinguished Knotts because the Supreme Court noted in Knotts that the beeper surveillance was limited and explicitly noted that more pervasive surveillance might be treated differently.   In concluding that the Fourth Amendment requires a warrant to engage in extensive GPS surveillance, the D.C. Circuit noted that “[w]hen it comes to privacy . . . the whole may be more revealing than the parts.”  As the court reasoned:

It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.

The Supreme Court will determine if it agrees with this theory. 

The problem with the Court’s existing view of no privacy in public is that people often do expect privacy in public.  The Court’s conception of privacy wrongly views privacy as total secrecy and fails to recognize that people often have practical obscurity in public.