Decentering Property in Fourth Amendment Law
For the past several decades, privacy has been the primary conceptual foundation for Fourth Amendment search law. The canonical test for Fourth Amendment searches accordingly looks to whether the government has violated a person’s reasonable expectation of privacy. Yet privacy is no longer the sole determinant of Fourth Amendment protection, as the Supreme Court has recently added a property-based test to address cases involving physical intrusions on land or chattel. Further, given the ambiguity of the reasonable expectation of privacy test, a variety of influential judges and scholars have proposed relying primarily, or even exclusively, on property in determining the Fourth Amendment’s scope. And the current Supreme Court, which has changed substantially since its last major Fourth Amendment case, seems especially likely to be receptive to property-based approaches.
This Article exposes the overlooked challenges and flaws of a property-centered Fourth Amendment. Pushing past simple hypotheticals, it examines the complications of real-world property law and demonstrates its complexity and uncertainty. It also explores the malleability of property rights and reveals how governments can manipulate them in order to facilitate pervasive surveillance.
Turning to the normative justifications for Fourth Amendment protections, the Article addresses the narrowness and arbitrariness of property-based approaches. Fourth Amendment regimes based on property are likely to be underinclusive, offering little protection for the digital data that is often the focus of modern government surveillance. And property-centered approaches tend to ground Fourth Amendment law on trivial physical contact while ignoring far greater intrusions that raise
concerns about pervasive surveillance and fundamental rights. Finally, the Article contends that, because property is unequally distributed along race and class lines, its use as a determinant of Fourth Amendment protections risks leaving the most disadvantaged members of society with the least protection. While property concepts will be relevant in certain cases, they should be used very carefully, and very little, in Fourth Amendment law.