“The End of Privacy” in 61 Stan.L.Rev.

New law review article: Jed Rubenfeld, The End of Privacy, 61 Stan. L. Rev. 101 (2008). A fascinating article. From the Introduction, which is tantalizing about what comes:

How fragile a thing, law.

Not long ago, the notion that Americans could be seized off the streets, arrested, and jailed without probable cause might have seemed laughable. The power to incarcerate on mere suspicion or executive say-so belonged to dictatorships. “We allow our police to make arrests only on ‘probable cause,’” we used to be told; “[a]rresting a person on suspicion, like arresting a person for investigation, is foreign to our system.”

But in 2002, the President of the United States claimed and exercised the power to designate an individual, including an American citizen seized on American soil, an “unlawful enemy combatant”—and to imprison him on that basis, without probable cause and with limited if any judicial review.

Not long ago, it was possible to believe that the government could intercept Americans’ telephone calls only with probable cause and, absent exigent circumstances, judicial authorization. As late as 2004, the President declared:

Now, by the way, any time you hear the United States Government talking about wiretap, it requires—-a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

These statements, it turned out, were not true. As the President would later admit, he had in 2002 personally but secretly authorized (and then repeatedly reauthorized) the National Security Agency (NSA) to intercept Americans’ telephone calls and e-mail messages in certain circumstances without probable cause and without a court order. At the same time, the NSA reportedly procured from major telecommunications companies access to communications data on tens of millions of people unsuspected of any crime.

This Article is about the Fourth Amendment. It is an attempt to recover that amendment’s core meaning and core principles.

Why has the Fourth Amendment, despite explicitly governing seizures of the person, played so minimal a role in the judicial response to the “unlawful combatant” detentions? What allows courts to find no Fourth Amendment search or seizure when the government obtains records from telephone companies or Internet service providers showing whom you have
communicated with and when and for how long?7 What allowed the Sixth Circuit last summer to dismiss a challenge to the NSA’s covert wiretapping on grounds implying that the program might never be reviewed under the Fourth Amendment at all?8 What flaw, in short, in modern doctrine has made the Fourth Amendment so irrelevant to the present search and seizure debates—-and how could it reclaim its relevance? This Article tries to answer these questions.

At the heart of search and seizure law today, there is a kind of doctrinal black hole, known as the “reasonable expectation of privacy.” This concept, the “touchstone of Fourth Amendment analysis,” has never been able to do the work required of it.

. . .

In this Article, I will argue that Fourth Amendment law should stop trying to protect privacy. The Fourth Amendment does not guarantee a right of privacy. It guarantees—if its actual words mean anything—a right of security.

Despite privacy’s triumph, the right “to be secure” that the Fourth Amendment actually protects has never died. It still flickers in the case law and scholarship, even if without much doctrinal function and even if unsatisfactorily defined. By revitalizing the right to be secure, Fourth Amendment law can vindicate its text, recapture its paradigm cases, and find the anchor it requires to stand firm against executive abuse.