But it may be that we understand the Fourth Amendment to protect a kind of dignity. Even if a search does not burden anyone, or even if one doesn’t notice the search at all, this conception of privacy holds that the very idea of a search is an offense to dignity. That dignity interest is only matched if the state has a good reason to search before it searches. From this perspective, a search without justification harms your dignity whether it interferes with your life or not.
I saw these two conceptions of privacy play out against each other in a tragically common encounter in Washington, D.C. A friend and I had arranged a “police ride-along” — riding with District police during their ordinary patrol. The neighborhood we patrolled was among the poorest in the city, and around 11:00 p.m. a report came in that a car alarm had been tripped in a location close to ours. When we arrived near the scene, at least five police officers were attempting to hold three youths; three of the officers were holding the suspects flat against the wall, with their legs spread and their faces pressed against the brick.
These three were “suspects” — they were near a car alarm when it went off — and yet, from the looks of things, you would have thought they had been caught holding the Hope diamond.
And then an extraordinary disruption broke out. To the surprise of everyone, and to my terror (for this seemed a tinder box, and what I am about to describe seemed the match), one of the three youths, no older than seventeen, turned around in a fit of anger and started screaming at the cops. “Every time anything happens in this neighborhood, I get thrown against the wall, and a gun pushed against my head. I’ve never done anything illegal, but I’m constantly being pushed around by cops with guns.”
His friend then turned around and tried to calm him down. “Cool it, man, they’re just trying to do their job. It’ll be over in a minute, and everything will be cool.”
“I’m not going to cool it. Why the fuck do I have to live this way? I am not a criminal. I don’t deserve to be treated like this. Someday one of these guns is going to go off by accident — and then I’ll be a fucking statistic. What then?”
At this point the cops intervened, three of them flipping the indignant youth around against the wall, his face again flat against the brick. “This will be over in a minute. If you check out, you’ll be free to go. Just relax.”
In the voice of rage of the first youth was the outrage of dignity denied. Whether reasonable or not, whether minimally intrusive or not, there was something insulting about this experience — all the more insulting when repeated, one imagines, over and over again. As Justice Scalia has written, wondering whether the framers of the Constitution would have considered constitutional the police practice known as a “Terry stop” — stopping and frisking any individual whenever the police have a reasonable suspicion — “I frankly doubt . . . whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity[16]”.
And yet again, there is the argument of minimal intrusion. If privacy is a protection against unjustified and excessive disruption, then this was no invasion of privacy. As the second youth argued, the intrusion was minimal; it would pass quickly (as it did — five minutes later, after their identification checked out, we had left); and it was reasonably related to some legitimate end. Privacy here is simply the protection against unreasonable and burdensome intrusions, and this search, the second youth argued, was not so unreasonable and burdensome as to justify the fit of anger (which also risked a much greater danger).
From this perspective, the harm in digital surveillance is even harder to reckon. I’m certain there are those who feel an indignity at the very idea that records about them are being reviewed by computers. But most would recognize a very different dignity at stake here. Unlike those unfortunate kids against the wall, there is no real interference here at all. Very much as with those kids, if nothing is found, nothing will happen. So what is the indignity? How is it expressed?
A third conception of privacy is about neither preserving dignity nor minimizing intrusion. It is instead substantive — privacy as a way to constrain the power of the state to regulate. Here the work of William Stuntz is a guide[17]. Stuntz argues that the real purpose of the Fourth and Fifth Amendments is to make some types of regulation too difficult by making the evidence needed to prosecute such violations effective ly impossible to gather.
This is a hard idea for us to imagine. In our world, the sources of evidence are many — credit card records, telephone records, video cameras at 7-Elevens — so it’s hard for us to imagine any crime that there wouldn’t be some evidence to prosecute. But put yourself back two hundred years when the only real evidence was testimony and things, and the rules of evidence forbade the defendant from testifying at all. Imagine in that context the state wanted to punish you for “sedition.” The only good evidence of sedition would be your writings or your own testimony about your thoughts. If those two sources were eliminated, then it would be practically impossible to prosecute sedition successfully.
As Stuntz argues, this is just what the Fourth and Fifth Amendments do. Combined, they make collecting the evidence for a crime like sedition impossible, thereby making it useless for the state to try to prosecute it. And not just sedition — as Stuntz argues, the effect of the Fourth, Fifth, and Sixth Amendments was to restrict the scope of regulation that was practically possible. As he writes: “Just as a law banning the use of contraceptives would tend to encourage bedroom searches, so also would a ban on bedroom searches tend to discourage laws prohibiting contraceptives[18]”.
But were not such searches already restricted by, for example, the First Amendment? Would not a law punishing seditious libel have been unconstitutional in any case? In fact, that was not at all clear at the founding; indeed, it was so unclear that in 1798 Congress passed the Alien and Sedition Acts, which in effect punished sedition quite directly[19]. Many thought these laws unconstitutional, but the Fourth and Fifth Amendments would have been effective limits on their enforcement, whether the substantive laws were constitutional or not.
In this conception, privacy is meant as a substantive limit on government’s power[20]. Understood this way, privacy does more than protect dignity or limit intrusion; privacy limits what government can do.
If this were the conception of privacy, then digital surveillance could well accommodate it. If there were certain crimes that it was inappropriate to prosecute, we could remove them from the search algorithm. It would be hard to identify what crimes constitutionally must be removed from the algorithm — the First Amendment clearly banishes sedition from the list already. Maybe the rule simply tracks constitutional limitation.
Now the key is to recognize that, in principle, these three distinct conceptions of privacy could yield different results depending on the case. A search, for example, might not be intrusive but might offend dignity. In that case, we would have to choose a conception of privacy that we believed best captured the Constitution’s protection.
At the time of the founding, however, these different conceptions of privacy would not, for the most part, have yielded different conclusions. Any search that reached beyond the substantive limits of the amendment, or beyond the limits of dignity, would also have been a disturbance. Half of the framers could have held the dignity
