Reasonable Expectation of Privacy – Forbes Advisor – Forbes

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Even with how connected we are through social media, neverending email streams and text messages, we still value our privacy. And we expect those around us to respect it—we anticipate our requests for privacy to be listened to.

Though it is common sense in everyday life, there is a legal basis for preventing our privacy from being infringed upon unless it’s appropriate. Under fundamental U.S. case law and the Constitution, individuals and government bodies cannot infringe upon another person’s privacy without being held accountable. This is known as the “reasonable expectation of privacy.”

This guide outlines how the reasonable expectation of privacy works, gives some examples for clarification and offers suggestions on what to do if your privacy has been violated.

What Is the “Reasonable Expectation of Privacy”?

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Privacy, from a legal standpoint, is generally viewed as the “right to be let alone”. The reasonable expectation of privacy is a legal doctrine that allows individuals to hold people–and the government—accountable for violating their privacy.

However, this idea cannot be applied without certain conditions in place. The person whose privacy was violated must have had an expectation to be in private, and that expectation must have been reasonable. A reasonable person placed in the same position should take offense at their private matter being discovered or disclosed to the public.

How Does Reasonable Expectation Work?

A test to determine when a reasonable expectation of privacy exists was developed in the Supreme Court case Katz v. United States. This seminal case dealt with a wiretap on a public phone booth set by police in order to upend a gambling ring.

In his opinion on the case, Justice Harlan developed the following two-fold test to determine if someone’s expectation of privacy is reasonable.

  1. The person in question must have had an (actual) subjective expectation of privacy and
  2. Their expectation of privacy is one that society recognizes—or is prepared to recognize—as reasonable.

This test is a core component of analyzing if someone’s Fourth Amendment rights have been infringed, and it is also used in civic cases—albeit with variation. State privacy laws and regulations will differ from state to state.

For example, California’s view of the reasonable expectation of privacy in civil cases is very similar to the view expressed in Katz. The plaintiff in a case must have conducted themselves in a manner that shows they expected privacy and that it was in line with accepted community customs and norms.

Reasonable Expectations of Privacy and Constitutional Rights

The test developed in Katz is a cornerstone in understanding and analyzing whether someone’s Fourth Amendment rights have been infringed upon through search and seizure by the government. When you have a reasonable expectation of privacy, the Fourth Amendment protects you from being searched or surveilled without a warrant or exceptional circumstances.

If, while searching your home without proper justification or warrant, the government finds evidence that incriminates you, that evidence cannot be used in a court of law. It will be excluded entirely. For example, if a police officer comes into your home without a warrant or probable cause, any illegal substances they find in your home usually cannot be used against you in court.

Reasonable Expectations of Privacy in Public

Whether or not you have a reasonable expectation of privacy in public is not easy to determine. Because your actions, conversations and items (digital or physical) are available to the public, they cannot reasonably be expected to be kept secluded. However, the law does have some guardrails to protect you when you are around others outside your home.

For example, there is nothing wrong with someone overhearing a private conversation between you and a close friend in a restaurant. But if you shared personal details that were made public by someone who overheard you, you could potentially sue them. More specifically, if those true details were twisted and hurt your reputation, you could sue them for putting you in a false light.

Items used in a public manner, such as phone numbers dialed, trash on the street or emails sent, have no reasonable expectation of privacy attached to them. However, messages or other data on your personal cell phone cannot be searched without a warrant. There is a reasonable expectation of privacy on personal device data.

Keep in mind that privacy expectations change depending on where you are. If you enter a courtroom or the security screening section at an airport, your expectation of being left alone will invariably be lower. The government has a higher security interest in these areas—to protect public interest—so searches that you would never allow in your home are done as a matter of routine.

Reasonable Expectations of Privacy at Home

One’s home is the epitome of privacy, and as such, there is a high reasonable expectation of privacy there. These privacy standards extend to both homeowners and tenants—one does not have to own the home to have privacy in it.

Standards of privacy surrounding a home are such that someone does not need to invade your home to violate your privacy physically. If someone monitors your activity in your home, that would be a violation of your privacy. A Supreme Court case held that any police surveillance that could be considered “through the wall,” such as thermal imaging, would require a search warrant under the Fourth Amendment, given the homeowner’s expectation of privacy.

However, there are exceptions to privacy at home. The “open field” doctrine states that for any areas on your property visible to the general public from the air or street, no reasonable expectation of privacy can apply. For example, a police helicopter flying over a home that sees illegal activity in the backyard would not violate the Fourth Amendment by taking photos of that scene for evidence.

Examples of Reasonable Expectations of Privacy

To clarify this idea, here are a few examples where individuals would have a reasonable expectation of privacy.

  • Low-altitude drones: If a police drone were found to be flying around your property at a low altitude and took pictures of your property that could not be seen from the street, that would violate your privacy. While part of your property may be open to search due to the open field doctrine, if the areas were not visible from the street or from a standard airplane, that would be a privacy invasion. You would be protected under the Fourth Amendment. In the case of Long Lake Twp. Vs. Maxon, this is exactly what happened.
  • Having a conversation in a phone booth: Suppose you were having a private conversation about a business deal in a phone booth with the door closed. Though the phone booth is in a public area, if someone tried to listen to your conversation, they would invade your privacy. You clearly expect to keep the conversation private, given that you are having the conversation in a close phone booth and not on a bench, for instance.
  • Private surveillance: Let’s say you and your partner rent out an apartment from a landlord. After spending some time there, you find a camera that can record sound and video in your living room. Though the landlord owns the building, you are living in the apartment and have a reasonable expectation of being kept alone. You would be able to sue the landlord for damages due to mental and emotional suffering.

What to Do If Your Privacy Has Been Violated

If your privacy has been invaded in a serious manner, reach out to law enforcement as soon as possible. Hiring a privacy attorney or personal injury lawyer can help you navigate the situation. They can help you begin a lawsuit if appropriate and bring you some clarity in an emotionally troubling time.

If you think that the government has pressed charges against you by using evidence that was gathered in violation of your Fourth Amendment rights, reach out to a criminal defense lawyer as soon as possible. They will be able to evaluate your situation and provide some legal analysis. If they think you have a strong case, they may end up representing you in court.

If your privacy violation is digital and not physical—such as a data breach—the Federal Trade Commission (FTC) recommends you secure your data operations before reaching out to police or other law enforcement. Businesses that have lost data due to a privacy violation may need to notify their clients as well.

Frequently Asked Questions (FAQs)

What does the Fourth Amendment protect regarding the reasonable expectation of privacy?

Under the Fourth Amendment, you are protected from unlawful search and seizure, which would violate reasonable privacy expectations. Unlawful search or seizure is done when the searcher does not have a warrant, consent from the searched individual or probable cause to believe a crime has been committed. A warrant, for example, is required in cases where a search would be deemed to be a violation of someone’s reasonable expectation of privacy.

Does the reasonable expectation of privacy apply to public spaces?

In public spaces, individuals are still protected under the law, but what constitutes a reasonable expectation of privacy is trickier to nail down. Your right to seclusion or privacy does not necessarily extend to public spaces, but your private information or details may be protected. If someone releases private facts about you to the public, you may be able to sue them for damages.

In public spaces, the amount of reasonable expectations of privacy one can have depends on their circumstances. In a public airport, for instance, you would not expect a high degree of privacy and could not expect that your bags would not be searched. It is commonly accepted as reasonable that we allow greater surveillance of our person and belongings as the government has a heightened security interest in these areas.

Can employers violate an employee’s reasonable expectation of privacy?

Exact definitions of what constitutes a violation of reasonable expectation of privacy in the workplace will vary from state to state, but common threads remain across jurisdictions. Under privacy rights, an employee has the right to keep confidential private facts to themselves and the right to a degree of personal space. However, surveillance of your work phone or work computer generally does not violate your privacy rights.

If an employer does break your reasonable expectation to privacy without cause, the employee could bring a privacy invasion lawsuit against them.

How does technology impact the reasonable expectation of privacy?

Technology, especially with the quickening pace of AI, has made reasonable privacy expectations more complex. However, core issues ostensibly remain the same. Individuals with personal data on cell phones, such as their geolocation records, still retain their reasonable expectation of privacy regarding their data. This point, in particular, was made in the Supreme Court case Carpenter v. United States, where it was concluded that police require a warrant to search through personal data on cell phones.

As technology continues to affect all areas of our lives more and more, some think that what constitutes the bar of reasonable expectation of privacy may be heightened—or lowered.

Can someone waive their reasonable expectation of privacy?

Yes. If someone consents to have their home searched, for example, they have waived their right to a reasonable expectation of privacy. Using the two-part framework established by Katz v. United States, it could be argued that a person choosing to allow search means they no longer have an expectation of privacy. Therefore, the situation would not count as a violation of privacy.

Can the government conduct surveillance without violating the reasonable expectation of privacy?

Surveillance using electronic means (such as wire-tapping) requires a warrant, or else it is an unreasonable search and seizure. The Electronic Communications Privacy Act also regulates surveillance by electronic means.

For example, you would not expect a high degree of privacy when going through airport security. However, if you were subjected to the same surveillance at home, that would be an infringement on your privacy.

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