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Katz is out of the Bag:
Katz’s Weaknesses & the Rapidly Emerging Technology of Today and the Future.
Robert Keates Spring, 2005
Section IV – Katz, Emerging Technologies, and Expectations of Privacy
With the aid of technology, law enforcement techniques have advanced to the point where physical intrusion is no longer necessary to conduct a search. In an effort to preserve the level of privacy afforded at the time the Fourth Amendment was adopted, the Supreme Court held that physical trespass could no longer dominate search and seizure law. Commentators applauded the Katz decision as significantly expanding the scope of the Fourth Amendment's protections. This paper takes the opposite view, pointing out Katz’s weaknesses in light of the rapidly emerging technology of today and the future. This section will delve into three areas that the case law in Section II touched upon, although this time in relation to the technologies introduced in Section III.
The first subsection will examine each technology under a traditional Katz analysis, as the law stands today, which incorporates emphasis on the ‘type of information revealed’ by the technology. The technology will then be tested under what this paper will call a neo-Katz test, incorporating ‘how the technology operates’ instead of the ‘type of information revealed.’ In accordance with the paper’s second thesis, the objective prong of Katz will be applied using both past precedents, as well as a common sense look at social norms and deviance. Each piece of technology will then be scrutinized under the old pre-Katz property based law, to determine the extent of protection. This paper asserts that in many instances, property based Fourth Amendment law may actually provide more privacy protections than present day Katz. A subsection will discuss how the court’s ‘general use’ inquiry is flawed and will reduce privacy as technology increases.
A. Analysis Under Katz
The Fourth Amendment requires law enforcement to obtain a warrant prior to a search. Sometimes, a literal search may not be considered a search under the Fourth Amendment. To decide whether law enforcement action is a search, courts rely on Katz’s two pronged test. The first prong is a subjective test, analyzing the expectations of privacy of the individual, including any precautions taken to ensure privacy. Examples of precautions would include closing the blinds in a house, closing a phone booth door, or placing a fence around a building. The second prong is the objective test, requiring the expectation be one that society is prepared to recognize as reasonable. Examples of what society is not ready to recognize would include telephone conversations, statements made in front of other people, or acts blatantly exposed in a public place. Both prongs must be satisfied for an action to be deemed a search.
Only a brief description of methods used by an individual to exert a subjective expectation of privacy with regards to each piece technology will be given. For the purposes of this section, the paper will assume a subjective expectation of privacy has been asserted. This is done to maximize the arguments in advance of the papers theses.
1. Facial Recognition Systems
a. Traditional Katz Analysis
When looking at whether an individual has demonstrated a subjective expectation of privacy to not be recorded for use in facial recognition systems, courts must evaluate the individual’s conduct. The individual must seek to take precautions to hide his or her identity from the cameras. Obviously, an individual could wear a disguise. Masks are the most obvious example of a precaution against identity. An individual wearing a mask could be thought to have a subjective expectation of privacy in his face when in a public place. Likewise, fake beards, glasses, wigs, and apparel such as scarves, can all help to disguise the wearer while in a public area. Lastly, plastic surgery is a more permanent alternative to disguise, although not foolproof against some of the newer technologies. As was noted in Section III, some models of facial recognition software can take disguises into consideration, including plastic surgery.
Assuming courts were to find that an individual with a hat and glasses took the requisite precautions to possess a subjective expectation of privacy; Katz also requires that the expectation be one that society deems reasonable. Under a traditional Katz analysis, individuals who take precautions, such as glasses or a hat, are still taking a risk at being identified when venturing out into the public. There are many different ways to identify a person by sight alone, be it their stride, mannerisms, or stature. When something is exposed to the public eye, there can be no expectation of privacy. It would seem that society is unwilling to offer an expectation of privacy to any physical characteristic exposed to the public, even if veiled.
The court has directly ruled on the issue of physical characteristics in public, and has held that there are no Fourth Amendment privacy implications in what a person knowingly exposes to the public. In United States v. Dionisio, the issue was whether an individual’s voice, used in a public place, could be used to identify him. The court held that the Fourth Amendment does not protect what a person “knowingly exposes to the public.” The court noted that “no person can have a reasonable expectation of privacy that others will not know the sounds of his voice, any more than he can reasonably expect his face will be a mystery to the world.” In Davis v. Mississippi, the court expanded on this notion, holding that fingerprinting, like voice analysis, does not require any intrusiveness or penetration beyond the body’s surface, and thus does not implicate the privacy of an individual’s Fourth Amendment protections.
These cases solidify the court’s jurisprudence that the Fourth Amendment does not protect forms of identification relying on an individual’s physical characteristics. Even if, an individual has taken steps to shield his face from the public and law enforcement’s watchful electronic gaze, society does not consider it reasonable for that individual to have an expectation of privacy in characteristics exposed to the public. Once individuals leave the home, even if disguised, they are exposed to the public and risk being identified.
Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 385 (1974) (Katz is expansion rather than reconstructing fourth amendment protection); see also Kitch, Katz v. United States, The Limits of the Fourth Amendment, 1968 Sup. Ct. Rev. 133 (1968) (Katz allows courts to determine scope using logic of fourth amendment's central concepts).
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