Changing Expectations of Privacy and the Fourth Amendment

Public attitudes about privacy are central to the development of fourth amendment doctrine in two respects. These are the two “reasonableness” requirements, which define the scope of the fourth amendment (it protects only “reasonable” expectations of privacy), and provide the key to determining compliance with its commands (it prohibits “unreasonable” searches and seizures). Both requirements are interpreted in substantial part through evaluation of societal norms about acceptable levels of privacy from governmental intrusions. Caselaw, poll data, newspaper articles, internet sites, and other vehicles for gauging public attitudes after the September 11 attacks indicate that public concerns about terrorism and the erosion of personal privacy by governmental responses to terrorism have had significant effects on fourth amendment law. These include both a cutting back on overall fourth amendment coverage and treating as reasonable security intrusions that previously would not have been permitted. Results include less judicial scrutiny, additional intrusions based on security, possibly legal and political support for racial profiling in law enforcement