I. Introduction ................................................................................................... 291

II. The Multidisciplinary Foundations Of Privacy .............................................. 294

A. Early Conceptualizations of Privacy .................................................. 294

1 . The Roots of Privacy in Select Ancient Civilizations .................. 294

a. Code of Hammurabi ............................................................. 295

b. Privacy in Ancient Greece .................................................... 295

c. Privacy in Ancient Rome ..................................................... 296

d. Privacy in the Ancient Cultures of the Far East .................... 297

2. The Roots of Privacy in Religion ............................................... 298

a. The Talmud .......................................................................... 298

b. The Qur'an .......................................................................... 299

c. The Bible ............................................................................. 299

B. Bio-Psychological Constructs of Privacy ........................................... 301

1. How Animals Seek Privacy ........................................................ 301

2. How Humans Seek Privacy ........................................................ 302

3. The Importance of Privacy ......................................................... 303

C. Socio-Cultural Constructs of Privacy ................................................. 305

1. Differences Between Cultures .................................................... 306

2. Differences Within Cultures ....................................................... 309

a. Personal Space: Bodily and Territorial Privacy ..................... 309

b. Information Privacy ............................................................. 311

c. Communications Privacy ..................................................... 315

D. The Roots of Privacy Rights in the Philosophical Thought of the Enlightenment ................................................................................. 317

III. Privacy in Jurisprudential Thought .............................................................. 321

A. Privacy in Tort Law .......................................................................... 322

B. Fourth Amendment Privacy ............................................................... 325

C. First Amendment Privacy .................................................................. 327

D. Substantive Due Process Protection of Private Liberty Interests ........ 329

1. The Harbingers of Griswold ....................................................... 330

2. Griswold and Subsequent Substantive Due Process Privacy Cases ........................................................................................ 332

3. Lawrence v. Texas: Privacy as Protected Liberty Interest ............ 336

E. State Protection of Privacy Beyond Tort Law .................................... 337

IV. Investigating Reasonable Expectations of Privacy ........................................ 338

A. Prior Empirical Research on Reasonable Expectations of Privacy ..... 339

B. Comparison of the Present Study to Slobogin and Schumacher's ....... 342

V. Methodology ................................................................................................. 343

A. Materials and Participants .................................................................. 343

1. Survey ........................................................................................ 343

2. Procedures ................................................................................. 345

3. Participants ................................................................................ 346

B. Measures ........................................................................................... 346

C. Research Question and Hypotheses .................................................... 347

D. Data Analyses ................................................................................... 348

1. Overall Agreement with Leading Privacy Precedent ................... 348

2. Scale Construction for Bivariate and Multivariate Analyses ....... 348

VI. Results ........................................................................................................ 350

A. Demographic and Attitudinal Variables ............................................ 350

B. Research Question Results ................................................................ 351

1 . Chi-Square Goodness-of-Fit Tests for Levels of Agreement with Precedent .......................................................................... 351

2. Multivariate Analyses ................................................................ 359

VII. Discussion ................................................................................................. 362

A. Views on Reasonable Expectations of Privacy .................................. 362

1. Bodily Privacy ........................................................................... 362

2. Territorial Privacy ...................................................................... 363

a. Privacy in One's Vehicle ...................................................... 364

b. Privacy in One's Home ........................................................ 364

c. Privacy Around One's Home ................................................ 365

d. Students' Territorial Privacy at School ................................. 365

3. Information and Communication Privacy ................................... 366

B. Variables Predicting Views on Reasonable Expectations of Privacy .. 367

1. Multivariate Results ................................................................... 367

a. Political Party Affiliation ..................................................... 368

b. Educational Level ................................................................ 369

c. Religion ............................................................................... 369

d. Knowledge of Criminal Procedure ....................................... 370

2. Hypotheses ................................................................................ 370

VIII. Conclusion ............................................................................................... 371

I. Introduction

The word "privacy" is not used anywhere in the U.S. Constitution.1 Yet, that document has been interpreted to provide various privacy rights for many years.2 As Justice Brandeis wrote in his oñ-quoted dissenting opinion in Olmstead v. United States:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Both the constitutional bases of the right to privacy and the specific contours of the right have generated significant debate among scholars4 and the justices of the U.S. Supreme Court.5 Indeed, commentators assert that the term "privacy" in the legal context refers to three distinct rights: one grounded in the Fourth Amendment's guarantee of "freedom from government intrusion into an individual's home or on to an individual's person";6 one emanating from the "penumbras" of several amendments to the Constitution vis-à-vis the Fourteenth Amendment's Due Process Clause,7 which concern the liberty and autonomy "to make certain crucial personal decisions";8 and one stemming primarily from statutory enactments and the law of torts, which safeguard "the ability of a person to restrict dissemination of personal information."9 The social sciences and humanities (primarily philosophy) have defined even more meanings of privacy.10 Collectively, the multiplicity of meanings ascribed to privacy has caused it to become "a concept in disarray"; one that not only defies simple explication, but also which all-too-frequently provides a framework too vague "to guide adjudication and lawmaking."11

Whatever the sources and scope of the nebulous "right to privacy" may be, the Fourth Amendment to the U.S. Constitution provides a clear substantive right designed to protect people's privacy in their persons, homes, papers, and effects.12 The contemporary framework for applying the protections of the Fourth Amendment was adopted in Katz v. United States.13 Reasoning that the Fourth Amendment's Search and Seizure Clause "protects people, not places,"14 Justice Harlan articulated a two-part test for determining whether the Amendment's protections applied in a given case: First, the person seeking the Fourth Amendment's protection must "have exhibited an actual (subjective) expectation of privacy"; and second, that subjective expectation of privacy must "be one that society is prepared to recognize as reasonable."15

Katz' s approach to privacy suffers from numerous serious deficiencies. As Professor Chemerinsky points out, the "government seemingly can deny privacy just by letting people know in advance not to expect any."16 But perhaps an even more significant problem with Katz is that the Court has never attempted to determine in any systematic way how "society" might objectively view privacy rights in a particular search and seizure context, even though the rationale of Katz explicitly rests on such societal judgments. Katz, therefore, invites scrutiny of the legitimacy of judicial decision-making by premising its application on an appeal to "objective," societal beliefs concerning the reasonability of privacy expectations while leaving the determination to judges. But reasonable expectations "are those supported by larger society or representative of the expectations held by larger society."17

Although constitutional decisions by the judiciary are guided by the text of the Constitution, history (especially original intent), precedent, constitutional scholarship, and, undoubtedly, the values and beliefs of the adjudicating judicial officers,18 judges make no attempt to discern actual societal opinions when adjudicating Fourth Amendment disputes. The Supreme Court has not done so in any leading Fourth Amendment case. Of course, this situation is not unique to Fourth Amendment jurisprudence. Important societal concerns are often resolved by the judiciary, a fact that is often criticized since the judiciary is "a nonmajoritarian institution, whose guiding lights are neither popularly chosen nor even expected to express or implement the will of the people. Rather, its legitimacy rests on notions of honesty and fairness and, most importantly, on popular perceptions of the judicial decision-making process."19 Empirical research could help inform the judiciary about how "society" conceptualizes privacy, thereby providing not only a more sound basis for determining whether an expectation of privacy is "objectively reasonable," but also increasing public perceptions of the legitimacy of judicial decision-making in the Fourth Amendment context. The present research aims to begin providing judges with data to do so. It is our hope that judges can use this study to improve their "best guesses" in the interpretive calculus that often comprises the process of constitutional interpretation,20 especially since empirical data afford a far richer and more accurate framework for the process of constitutional factfinding than the "suppositions that thoughtful reflection can provide."21

II. The Multidisciplinary Foundations Of Privacy

Although the concept of privacy is most often associated with legal rights, there is growing interest in privacy issues as they relate to various fields of inquiry in the social sciences and humanities - most especially philosophy, psychology, anthropology, and political science. In a comprehensive, interdisciplinary review of scholarly literature published in 1995, psychologist Patricia Brierley Newell identified at least seventeen discrete concepts of privacy, including those describing it as a phenomenal state or condition of the person, a quality of place, a space of refuge, a goal, a descriptor of personal space or territoriality, a level of close personal intimacy, a behavior, a process, a legal right, a descriptor of an interactive condition (such as an attitude, solitude, anonymity, and secrecy), and the ability to control information, among others.22 Although the nature of each of these epistemological views on privacy is beyond the scope of this article, we review the major contributions from leading social scientific and humanistic disciplines to provide a holistic understanding of the concept of privacy.

A. Early Conceptualizations of Privacy

1. The Roots of Privacy in Select Ancient Civilizations

"The earliest record of a right to privacy is contained in the Mishnah, a compilation of ancient Israeli Oral Law collected circa 200 [CE.], which constitutes the core of the Talmud."23 Several passages mention or connote an inherent need to be left alone, a conceptualization of privacy that prevails even to this day. However, privacy concepts date back millennia far before the relatively modern notion of a "right" to privacy.24

a. Code of Hammurabi

The Code of Hammurabi is a detailed set of principles that were meant to guide citizens of Babylonia with various activities such as agriculture, commerce, land rights, and contractual agreements.25 For instance, with the help of surrounding landowners, the boundaries of land were specified and written on tablets - a process conducted in front of witnesses.26 While this compendium of King Hammurabi's judgments contains several obscure rules with regard to land rights, the rules governing the sanctity of the home were very clear: "If a man makes a breach into a house, one shall kill him in front of the breach and bury him in it."27 The Code also called for punishment by death for violent theft (e.g., robberies), kidnappings, and receiving stolen goods. It also contained similar provisions for nonviolent burglaries of the home, even though other nonviolent thefts were usually punished by restitution - often using a punitive damages multiplier.28 Thus, even this early legal code recognized privacy in one's person, home, and possessions as a sacred interest.29

b. Privacy in Ancient Greece

Athenian concepts of privacy are best understood from the perspectives developed between the conclusion of the Peloponnesian War in 404 B. CE. and the defeat of Athens in the battle of Chaeronea in 338 B. CE.30 During this time, Athenians experienced significant changes in politics and economics.31 A country once blemished by tyrant rule finally experienced a flourishing democracy.32 It regained "much of its naval and commercial eminence," which provided the resources and time necessary to develop the "first democracy with a written language."33

Largely as a result of the acts perpetuated by the Thirty Tyrants in 404 B. CE,34 Athenians came to view intrusions "upon one's private existence, an attack upon whatever limited autonomy the individual has managed to achieve" as grave forms of injustice.35 For this reason, laws were established to protect individuals from intrusions against private property and into personal information within the family setting.36 However, Athenian notions of privacy were generally limited to these realms and, therefore, did not include expansive conceptualizations of liberty and autonomy within the public perception of privacy, largely in response to the influence of the prominent Athenian philosopher Plato.

Plato and many Athenians of his time were skeptical of personal autonomy because they viewed democracy "as a much more complete surrender of the individual to the whole. Theirs was a 'communitarian' and highly 'participatarian' ideal; the greatest mark of freedom was participation in public activity, to the exclusion of individual identity as Americans know it."37 An Athenian who sought privacy as we think of it today rejected "the challenge and responsibilities of political action" and, therefore, did not live up to his duties as a citizen.38 Moreover, Plato and other idealists of his time envisioned a society in which there was no need for privacy. As long as "social institutions work out perfectly and there is ... an educational system that grinds out new personalities suited to the perfect social order, why should there be any need for privacy?"39 Consequently, Plato did not perceive privacy as having a psychological or social purpose in a perfect society in which it would be an honor to be part of the public realm.

c. Privacy in Ancient Rome

According to legend, Rome was founded by Romulus in 753 B.C.E.40 While serving as Rome's ruler, Romulus is credited with having established an advisory council comprised of the patriarchs of powerful families, a body which eventually was referred to as the senatus (senate).41 The senatus advised monarchs for roughly 200 years until Rome became a republic in 509 B.C.E.42 Even during the period of the Roman republic, the senate never gained legislative authority.43

In its earliest stages, Rome was a simple agricultural community, and its laws reflected the simplicity of such life.44 By 451 B.C.E., Roman law was codified into the Twelve Tables, which was largely in response to "the class struggle between the patricians, the land-holding upper class, and the plebeians (everyone else including the merchants)."45 Theft of personal property, including crops, was considered an offense punishable by death,46 thereby illustrating the importance of ownership - a right which grew into the "most extensive right that a person can have in a corporeal thing" as Roman law evolved.47 hi no place did privacy matter more under Roman law than in the home. In his famous speech entitled On His House, Cicero, the famed Roman legal expert, stated:

What is more sacred, what more inviolably hedged about by every kind of sanctity, than the home of every individual citizen! Within its circle are his altars, his hearths, his household gods, his religion, his observances, his ritual; it is a sanctuary so holy in the sight of all that it were sacrilege to tear an owner therefrom.48

Undeniably, to Cicero - and hence, to Romans - the home was a sacred place of refuge. To have this private sphere breached "was Cicero's anguish."49

d. Privacy in the Ancient Cultures of the Far East

By the third century B.C.E., and perhaps much earlier, the Chinese developed clear distinctions between concepts of public and private. "According to myth, when Ts'ang Chieh created the system of writing, he used the character for private to express the idea of self-centredness, and combined this character with that for opposed to, to create the character public, which often referred to the affairs of government."50 There does not appear to be any corresponding concept of privacy in ancient Japanese culture.51 In fact, in 1984, Iwata reported that there was still no translation for the English word "privacy," although there were concepts related to western notions of privacy, such as "private life," "freedom," "solitude," and "secrecy."52

2. The Roots of Privacy in Religion

a. The Talmud

The Talmud is a collection of ancient oral law, comprised of teachings from the Mishnah, which recognized notions of privacy dating back to circa 200 CE.53 As Rabbi Alfred Cohen suggests, "Albeit we are concerned to prevent undue invasion of privacy[,] we find that our Sages wrote primarily on the many ways in which privacy is a desideratum in itself, an essential ingrethent in the formation of the complete human being."54 For instance, the Talmud notes that Jewish encampment must be set up so that no one's door faces the doorway of another person's tent; this ensured that each person had a private space.55 If an individual's private sphere was visually breached, it was known as "hezek re'iyah," meaning damages incurred by visually looking into another person's private sphere.56 In such cases, the Talmud teaches "that a neighbor is obligated to share the expense of building a privacy fence between two courtyards."57 The importance of privacy in the home is also evident in the directive that, even if a court messenger had been given direct orders by a judge to seize money for a creditor, the messenger could not enter the debtor's home.58 The Talmud also recognized a type of informational privacy. Judges were supposed to keep their debates and deliberations in the Sanhédrin private59 because the "confidentiality of the deliberative process in judicial proceedings [was] absolutely essential if the members of the court [were] to act without constraint, without fear of reprisal from the guilty parties."60

b. The Qur'an

Like the Talmud, the Qur'an also addressed notions of privacy concerning both the home and personal information.61 There are a number of verses pertaining to the sanctity of the home that not only clearly express the notion that a person's home is private, but also that the home should not be entered without permission or consent of the owners. For example: "O believers! Enter not the houses other than your own, until you take permission and salute the residents thereof. This is better for you, haply you may be heedful."62 Even if there is no one home, "then also enter them not without the permission of the owners; and if you are told to go back, then go back, this is cleaner to you."63 The Qur'an also places great emphasis on the private life and private information which "no one, not even the government, has the authority to inquire or investigate."64 "O ye who believe! Avoid suspicion as much (as possible): for suspicion in some cases is a sin: and spy not on each other, nor speak ill of each-other behind their backs."65 The Qur'an also forbids the dissemination of private, personal information because people are to exercise control over only their own information, not the affairs of others66: "Those who desire that scandal should spread among the Muslims, for them is the painful torment in this world and the Hereafter and Allah knows and you know not."67

c. The Bible

Although the word "privacy" does not appear in the King James version of the Bible, there are several passages in the Bible that scholars have linked to various conceptualizations of privacy. In the story of creation, the Bible states that, after granting humans life: "Unto Adam also and to his wife did the Lord God make coats of skins, and clothed them."68 At least one scholar has referred to this passage as God's second gift - "the right to be reticent before the eyes of each other."69 As Rosa Ehrenreich explained, this interpretation of bodily privacy is bolstered by Milton Konvitz's observation that "[a]lmost the first page of the Bible introduces us to the feeling of shame as a violation of privacy." He refers, of course, to Adam and Eve's sudden awareness, after eating the forbidden fruit, of their nakedness and their instant dash for the fig leaves. Konvitz observes, "[Mjythically, we have been taught that our very knowledge of good and evil - our moral nature as men - is somehow, by divine ordinance, linked with a sense and a realm of privacy." Similarly, when Ham sniggers over his father Noah's nakedness while Noah lies "uncovered in his tent," God sees to it that Ham's descendants are forever condemned to be servants and slaves.70

The Bible also contains passages which strongly support notions of private property. The Old Testament suggests that between approximately 1900 and 1000 B.C.E., tribes of ancient Israelites regulated their own existence: "In those days there was no king in Israel; every man did that which was right in his own eyes."71 These tribes, however, were governed by a loose regulatory system that valued private property.

The solidarity of the tribe was preserved to a great extent by an institution know as the go 'el. If misfortune or imminent loss threatened the lot, life, or property of an Israelite, this custom obliged a closely related male to act as redeemer, defender, or protector to ensure that the person or property not be lost.72

In fact, "it was the obligation of the go 'el to exact blood vengeance" for transgressions against property, as well as those against the life of another.73

Once the ancient Hebrews evolved out of their semi-nomadic state and King Solomon began his rule (in about 970 B.C.E.), "the body of rules that goverafed] the relationship of men with God" finally permeated "the social and legal order."74 According to the Bible, the Ten Commandments became the primary regulatory system for upholding justice and the behavior of individuals.75 Only the Eighth and Tenth Commandments, however, pertain to private property: "Thou shalt not steal"76; and "Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbour's."77 Since it was forbidden not only to steal, but also to even desire another person's private property, the Eighth and Tenth Commandments strongly suggest a regime in Biblical times that placed high value on private property.78 In contrast, the Sixth Commandment bars adultery,79 a concept that is developed in the New Testament beyond its ancient Jewish underpinnings as a sin that only women could commit80 to be one that both sexes could commit: "The wife hath not power of her own body, but the husband: and likewise also the husband hath not power of his own body, but the wife."81 This passage suggests sexual privacy as an exclusive property right within marriage.82

B. Bio-Psychological Constructs of Privacy

1 . Examples of How Animals Seek Privacy

Although privacy is a concept that is often perceived as being a unique characteristic of human beings, several decades of growing evidence suggest humans and animals both share biological needs for privacy.83 One of the first studies on privacy in the animal kingdom reported that animals need periodic seclusion either alone or in small groups.84 For instance, although many species of birds migrate and work together in large groups in order to defend their territory from outsiders, they also seek time away from other birds to regulate resources (such as food), enhance mating selection, or provide a safe habitat for their offspring.85 Many species of animals seek "private space to promote individual well-being and smallgroup intimacy," which is very similar to that which occurs in human society.86 Conversely, when certain animals are able to achieve some privacy but are still able to interact with others of the same species when they so desire, there is a corresponding increase in their sociality87 and time spent in affiliative behaviors, just as it is for humans.88 Such behavior, in turn, produces physiological benefits which include "enhanced immune response and lower blood pressure."89

Many animals also spatially distance themselves to the parameters of their territory, a concept known as personal distance.90 By spacing themselves according to olfactory, optical, and acoustical means, species create buffer zones that protect them against predators and facilitate coexistence.91 As explained in this next section, this is quite similar to the way that humans use space to define their "personal, intimate, and social distance in his [or her] interpersonal relationship."92

2. How Humans Seek Privacy

Like animals, humans need personal space for physiological autonomy. As Edward Hall first described the concept in 1959, "personal space" is a fluctuating zone around a person that regulates social interaction with the outside world.93 By controlling the space around a person through verbal, nonverbal (e.g., body orientation and gestures), and environmental mechanisms, people attain a specified amount of territory that is desirable for their specific needs.94 The amount of desirable space, however, is dependent on the relationship status, social context, and personality of the individual.95 For instance, body orientation is more reserved toward strangers as opposed to friends and intimate partners.96 Moreover, the social context or setting influences normative amounts of space. If a person were to encroach on someone's personal space at a bar, it would be more acceptable than in a library reading room because bars are, by their nature, social places.97 In addition, a person's preferred amount of space is also affected by a number of personal characteristics, explored below.98

Unlike animals, most humans no longer need to attain personal or private spaces by methods as primitive as defending territory. One way in which people set boundaries is through the personalization of the physical environment.99 For example, a tenant does not physically own the building in which he or she resides, but through personalization of space using furniture, art, and other personal belongings, the tenant marks his or her territory. A more pronounced way to define one's space as private is by demarcating physical boundaries using such features as fences and landscaping. As has historically been the case, the most affluent (and, arguably, therefore the most dominant or powerful in society) often control the best or safest territories100 and the means to make their territory private.101

Privacy was a treasured possession and a mark of status in many early civilizations. To protect themselves from unwanted intrusion, affluent Egyptians had vine hung gardens, Greeks used porticoes, Romans had various enclosures, and the wealthy British had country homes guarded by stone walls and parks. In poorer homes no such privacy existed. 102

This type of territorial privacy among the wealthy still exists today as evidenced by large homes on spacious lots located in gated communities, many of which are protected by security personnel.

3. The Importance of Privacy

Although children need social interaction, they also need privacy to promote personal identity, growth, security, and trust.103 As Marcus (1992) elaborates, "we need to claim a space where we can, when we choose, be physically alone, able to fantasize, to dream, to play roles, [and] to nurture emerging self-identity."104 Just as privacy deprivations negatively impact child development, the loss of privacy has similar negative consequences for adults. For example, having the privacy of the home invaded by burglars "destroys an individual's inside/outside boundaries, damages social trust, converts private locations to public ones, and violates selfidentity."105

Failure to be able to achieve privacy, such as when one is homeless or confined in psychiatric hospitals, prisons, or submarines, can have similar devastating psychological effects, such as deindividualization and dehumanization, "which undermine rehabilitation, and the loss of the ability, after release, to successfully reintegrate into ordinary life."106 Even when people are not in total institutions, the inability to achieve privacy can take a serious psychological toll.107 Consider, for example, celebrities like Lindsay Lohan and Sean Penn, who experience significant emotional breakdowns when they are unable to escape media scrutiny - especially the invasive cameras of the paparazzi. The often dysfunctional behaviors of those who live life in the spotlight are congruent with research which has demonstrated that a failure to meet privacy needs is "significantly related to antisocial behaviors and aggression."108

Another form of privacy loss concerns the public disclosure of highly personal information. Depending on the content of the information, this form of privacy loss can have negative social and psychological consequences. Disclosure of certain diagnoses, habits, sexual activities, and so on can subject people to stigmatization. Typically, those who are stigmatized have "been devalued, been accorded lower status, and been targets of negative stereotypes, prejudice, and discrimination."109 For instance, Derlega and colleagues110 found that individuals with HIV/AIDS often would not disclose such information to parents, friends, or significant others out of fear of being rejected even though concealing such a diagnosis produces great stress which, in turn, can lead to a faster progression of the disease.111

C. Socio-Cultural Constructs of Privacy

Most social scientists accept privacy as a nearly "universal need" even though the concept means different things to different people.112 For example, Maxine Wolfe and Robert Laufer found that children ranging from 5 to 17 years old ascribed 39 different meanings to the concept of privacy.113 Four common themes ran through these definitions: limited access to information, solitude, isolation, and controlling access to space.114 Similar studies replicated these findings with adults, "5 although in some studies, six distinct dimensions surfaced by adding two forms of intimacy - one with friends and one with family.116 Drawing on this research, Table 1 summarizes the six major themes that emerge in research on the social dimensions of privacy in terms of the variability in social settings (small group associations, larger social interactions, and by oneself).

Some scholars have interpreted these definitional disparities as reflecting the multidimensionality of privacy situations,117 while others view such variability as a function of individual differences in privacy preferences.118 Still others conclude that the meanings of privacy vary due to the interaction of differing cultural, behavioral, and legal notions concerning that which is "private."119 Since behavioral and legal traditions vary across cultures, it should not be surprising that both conceptualizations of privacy and the mechanisms used to regulate privacy vary considerably across cultures.120

1 . Differences Between Cultures

As explained above, there are biological and psychological dimensions to privacy needs. The ways in which those needs are conceptualized and acted upon, however, are dependent, to some degree, on culturally-specific norms and customs.121 For example, cultural anthropologist Dorothy Lee (1959) found striking differences between views on privacy in the United States and people of Tikopia, a small Polynesian island at the southernmost tip of the Solomon Islands in the Pacific Ocean.122 Lee documented how individualism and notions of private space in the United States were both culturally important and readily apparent in social behaviors:

[T]he child grows up needing time to himself, a room of his own, freedom of choice, freedom to plan his own time and his own life .... He will spend his wealth installing private bathrooms in his house, buying a private car, a private yacht, private woods and a private beach, which he will then people with his privately chosen society. The need for privacy is an imperative one in our society, recognized by official bodies of our government.123

In sharp contrast, the people of Tikopia place much greater emphasis on collective social values than on individualization.

[T]he Tikopia help the self to be continuous with its society [rather than separate from it] ... . They find it good to sleep side by side crowding each other, next to their children or their parents or brothers and sisters, mixing sexes and generations; and if a widow finds herself alone in her one-room house, she may adopt a child or a brother to alley her intolerable privacy.124

Lee also noted marked differences in the ways people worked. Among the Tikopia, if a man had to work alone, he often would bring a child to keep him company. Conversely, "[i]n our culture, the private office is a mark of status, an ideal; and a man has really arrived when he can have a receptionist to guard him from any social intrusion without his private consent."125 Lee's findings mirrored those of Margaret Mead's famous and groundbreaking anthropological study of Samoa in which she reported a similar absence of privacy,126 as well as studies of early Native-American cultures in North America.127

Of course, the works of pioneering anthropologists like Jones, Mead, and Lee compared isolated and arguably primitive cultures to those of then-present-day society in the United States, revealing stark differences on opposite ends of the spectrum. Contemporary studies, though, have documented similar cultural differences between North American and European societies and other modernized countries. The former continue to embrace individualism, autonomy, personal control, and private space; some countries in Asia and Africa, however, place much greater emphasis on collective social values, especially within the family.128 Consider, for instance, what European researchers reported about living in Sri Lanka:

[H]ouses and gardens are only sparsely separated, entry doors are open most of the time, and the personal bedrooms are merely separated from each other by simple curtains. This "openhearted" way of life (without visible boundaries and privacy for the individual) requires that almost all excursions and activities are undertaken with family members (e.g., weekly shopping trips, visits to relatives, or visits to Buddhist temples). Times of solitude, withdrawal in the sense of physical privacy are obviously not planned - this is expressed even in domestic architecture.129

These ethnographers studying health care in Sri Lanka found similar openness with respect to informational privacy when applying Western ethical research standards, which required "one-on-one conversations within a guarded setting to provide physical privacy"; this "confronted Sri Lankan participants with a strange and uncomfortable situation."130 Similar socio-cultural differences in privacy concepts and needs have also been noted in studies of students living in residence halls on Turkish and U.S. college campuses,131 Somalis living in Norway,132 and Chinese students and visiting scholars studying in Canada.133

Cross-cultural differences have also been observed with respect to peoples' desires for personal space.134 Building on his original research in which he coined the term, Hall later opined (even though he took no measurements) that "contact cultures" (e.g. Arab, Asian, Mediterranean, and South American countries) prefer less personal space than "noncontact cultures" (e.g., those in North America and Northern Europe).135 Research since then has provided empirical support for most of Hall's intuitive conclusions that "participants from northern [noncontact] countries such as Greenland, Finland, and Denmark systematically kept a significantly larger distance to strangers than the participants from Italy, India, and Cameroon [contact countries]."136 Another study which supported Hall's observations concluded that: "Whites in the United States, Canada, and England stand far apart[;] Europeans stand somewhat close[ly;] and South Americans stand closer still."137 Hall's suppositions with regard to Asians, however, have been documented in the literature with respect to crowding,138 but not with regard to personal space during interpersonal communications. Quite the contrary, Asians maintain significant amounts of personal space, a finding noted both in dyads of Japanese people and when Chinese, Japanese, or Thai people engage in conservation with people from European or Latino cultures. 139

2. Differences Within Cultures

Studies examining differences in privacy conceptualizations within a given culture tend to focus on one of three areas: personal space (which include matters of proximal privacy around the person and his/her territory, such as the home); information privacy (especially with respect to consumer and health care matters); and communication privacy (especially with respect to digital communications via cell phones and the Internet).

a. Personal Space: Bodily and Territorial Privacy

Unsurprisingly, the dimensions of personal space vary according to the interactional setting. For example, the space available in the room and the number of people in it necessarily affect the distance between people.140 The nature of the interaction is also an important determinant of the need for personal space. When we know the people with whom we are interacting and are comfortable, personal space needs decrease; conversely, when interacting with strangers or with people whom we dislike, personal space needs increase.141 Similarly, people tend to decrease personal space between themselves and those whom they find attractive or who are similar "in relation to age, political orientation, race, sexual preference, and status."142

The distance that people require between themselves and others also varies according to a number of personal characteristics of the actors, such as ethnic or cultural heritage, age, gender, and personality. 143 In terms of culture, the cross-cultural differences in the need for personal space noted earlier also manifest themselves in ethnic differences within the same broad culture, especially with regard to crowding. Within the United States, for instance, Latin-Americans and Asian-Americans perceived crowding differently than European- Americans and African-Americans.144 Specifically, Mexican-Americans and Vietnamese-Americans, hailing from close contact or collectivist cultures, perceived their residential areas as less crowded than Anglo-Americans and African-Americans, both of whom are considered to be from noncontact or individualistic cultures.145 It should be noted, however, that none of these groups differed in the negative psychological distress they experienced from what they perceived to be crowding in high-density residential areas.'46 Thus, it may be "misguided to presuppose that some cultural groups can better tolerate high-density living space."147

Age, sex, and personality also affect the need for personal space. "Children tend to have shorter interactional distance than adults. From puberty and on, their spatial patterns start to resemble that of adults."1 8 In terms of sex differences, males tend to maintain a greater amount of personal space than females during social interactions.149 Specifically, "female dyads interact at a closer distance than do either mixed-gender dyads or male dyads [and m]ixed-gender dyads tend to be more proximate than do male dyads." 15° Men are also more territorial with their personal space, as they tend to "assert their territoriality through a higher degree of firmness of boundaries . . . [whereas] women employ expressive strategies to regulate self/other boundaries."151 Finally, in terms of personality, people "with a high degree of extraversion, dominance, self-esteem, internal locus of control, and a 'secure adult attachment style' tend to have shorter interactional distance than persons low on these measures."152

b. Information Privacy

Information privacy is defined as the "claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others." Information privacy in the United States has historically been concerned with tortious invasions of privacy using a framework formulated in an era dominated by print media.154 Such torts occur when someone either "intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs ... if the intrusion would be highly offensive to a reasonable person,"155 or when someone publishes facts "of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public."156 Today, however, information privacy encompasses a much broader concept of private information. This is due in large part to the technological advancements of the Information Age and to the law of torts having been supplemented by privacy legislation at both the federal and state levels, as well as by case law applying the constitutional protections of the First, Fourth, and Fourteenth Amendments to privacy-related concerns.157

Even with the expansion of social controls for informational privacy beyond tort law, the Information Age has challenged information privacy in a number of ways - most notably with regard to consumer privacy as it applies to online shopping158 and banking.159 The Information Age has also affected how "personal health information is used, disclosed, and protected, and the degree of control [consumers] have over the dissemination of this information."160 It is not our aim to provide a comprehensive review of the multidisciplinary literature and social controls governing these areas. Rather, in this section, we present a short overview of these areas so that readers might develop a basic appreciation for the complexity of informational privacy concerns in the Information Age.

Consumer Privacy. Advances in computer technology, especially data-mining algorithms, permit advertisers to profile and personally target potential consumers whenever "warranty applications are completed, 800 numbers are dialed, submissions for and usage of credit cards occur, purchases are made with discount affinity cards, and Web sites are visited."161 Because consumers often fail to grasp how these data are used, state and federal legislation have forced businesses in several sectors - ranging from "financial services, health services, cable television, telecommunications, children's online services, and video rental" - to report to consumers if, and under what circumstances, they disclose information about their clients or customers. 162 Even businesses that are not mandated to disclose their privacy practices do so on a voluntary basis because of consumer concerns over information privacy.163

As Justine Rapp and her colleagues explain, consumer concerns about information privacy fall into distinct, yet related, areas: "transparency and their levels of awareness when personal data are collected and disseminated; security and the protocols in place to ensure information is protected from outside intruders; liability and available remedies if data are improperly used or errors occur in records."164 Empirical studies, largely from the field of economics, suggest that consumers' concerns about sharing personal information with businesses are both driven by and mediated by a number of factors, including:

(1) the type of information requested, such as demographic, lifestyle interests, media habits, personal identifiers, or financial data; (2) the amount of control the consumer has over the use of the information; (3) the potential consequences and benefits of the exchange (for instance, increased volume of junk mail or risk of identity theft versus shopping savings or convenience); and (4) characteristics of the individual consumer, including demographic characteristics, prior experiences, technical knowledge, and shopping habits. Controlled surveys and experimental studies show that people will (or will not) give up their personal information based upon the results of a "privacy calculus" that assesses whether their information will be used fairly and whether negative consequences might result in the future.165

Research demonstrates that most consumers are concerned about the ways companies use their personal information, especially if the data provided are used for purposes unrelated to the reasons it was originally gathered.166 Yet, consumers seem to understand that information about them has value to business, and they are willing to disclose some of that data for some rewards.167

Health Care Privacy. Patients' medical records not only contain their medical histories, but also a wide variety of personal, financial and social information.168 Prior to 1996, "medical records were not subject to specific privacy requirements and were only protected by the constitutional or common law right to privacy, which was overbroad and insufficient to protect the sanctity of medical records."169 With the passage of the Health Insurance Portability and Accountability Act (HIPAA) of 1996,170 Congress established a statutory and regulatory framework for increasing the protection of medical records.

Presumably, most if not all people have a significant interest in keeping their medical records private. However, people who have a chronic disease or who are otherwise in poor health are particularly concerned about disclosing information related to their health since it potentially could "damage their status, employment opportunities, or social standing."171 Similarly, people who have had their informational privacy violated in the past express significantly more concern about such privacy and, therefore, are less trustful of guardians of such information, including health care providers.172 Additionally, certain personality characteristics are also linked to informational privacy concerns in the health care arena. Emotional instability, for example, "heightens the fears of possible negative outcomes, which leads to increased sensitivity."173

As with online banking and shopping, the movement of health care records from the traditional paper methods of record keeping to a digital format raises significant information privacy concerns.174 These concerns are magnified when the records are stored on the Internet by online health services like Google Health and Microsoft HealthVault since, at their founding, the privacy protections of HIPAA did not apply to them - a situation which led some commentators to call for increased statutory and regulatory controls of such providers.175 Congress took some steps to extend better protections to the privacy of electronically-stored health records when it enacted the American Recovery and Reinvestment Act ("ARRA," more commonly referred to as the stimulus package) in February of 2009. 176 Not only did ARRA provide significant funding to implement a nationwide movement to digitalize health information technologies, but AARA also extended and strengthened HIPAA's reach to make "electronic health records more secure and patient-accessible."177 However, scholars and the public have not had time to digest the contours of these statutory changes.178 Moreover, in the wake of the even more dramatic changes to the U.S. health care landscape that Congress enacted in 20 10,179 it seems clear that concern over the privacy of medical records will not wane anytime in the near future.

c. Communications Privacy

Communications privacy concerns the ways in which people communicate with each other. For time and memoriam, the law has protected written communications between people. Consider, for example, that it has been a federal offense to open or tamper with another's mail for well over 100 years.180 Indeed, the very text of the Fourth Amendment protects people's "papers" from unreasonable searches and seizures - a term that was specifically chosen to constitutionalize a "long-standing postal policy . . . motivated by fears of government officials prying into the thoughts of those sending letters through the post office."181 Of course, both the constitutional and statutory privacy protections were later expanded to other means of mass communication, most notably telephone conversations.182 Modern digital communications183 pose special privacy concerns for users of cordless phones,184 wireless/cellular phones,185 email,186 and instant and text messaging.187 The biggest challenge to communication privacy in the early part of the 21st Century, however, clearly concerns internet-based communications on online social networking sites.188

Early adopters of social networking sites like MySpace or Facebook were primarily college students who appear to have given little or no thought to the privacy of their communications through these media.189 That, of course, has changed dramatically; not only do users span age groups, but most of these users have begun to understand that their online life is not truly private - although few truly understand the privacy risks involved.190 For several years, researchers have documented digital communicators' apprehension about the risks associated with sharing personal information online, especially through social networking sites.191 Such concerns, however, have not necessarily translated into changes in behavior for many people. Not only do approximately 90% of users not read the privacy policy or terms of service of the social networking sites they utilize,192 but only a small percentage of social networking users actually change the default privacy settings to protect their information privacy better.193

Women appear to have greater informational privacy concerns than men and, as a result, tend to disclose less identity information, such as home addresses, phone numbers, and instant messaging addresses than men do on social networking sites.194 Similarly, rural users, who tend to have fewer friends on social networking sites, express higher levels privacy concern than urban users - a difference even more pronounced among rural women.195

D. The Roots of Privacy Rights in the Philosophical Thought of the Enlightenment

The Age of Enlightenment is a movement characterized by a "restless spirit of inquiry."196 The era was a time when many traditional or old beliefs, especially those concerning the authority of the church or the state (especially vis-à-vis a monarch), were investigated and scrutinized because they lacked any basis in reason.197 In fact, "reason" emerged during the Enlightenment as a distinct epistemology grounded in logic, as opposed to the prevailing epistemologies of the time grounded in personal revelation or faith in institutional power.198 Thus, the Enlightenment brought "protest against metaphysical speculation" and, indeed, "all attempts to explain the phenomena of human existence in any manner which transcends the ordinary processes of reason, and consequently possesses no firm foundation of reality."199 The philosophy which emerged during this period transformed the landscape of human understanding and significantly influenced the Founders of the United States, the authors of the U.S. Constitution, and, as a result, modern jurisprudence.200

Pinpointing the exact dates of the Enlightenment is not an easy task because the period was "rather amorphous and diverse."201 The works of Isaac Newton,202 Rene Descartes,203 John Milton,204 and Thomas Hobbes205 are generally considered to mark the period's start. John Locke,206 David Hume,207 Charles de Montesquieu,208 Voltaire,209 Jean- Jacques Rousseau,210 Cesare Beccaria,211 Adam Smith,212 Immanuel Kant,213 and Jeremy Bentham214 all wrote during the heart of the Enlightenment.215

Many of the Enlightenment philosophers expounded upon principles which form the basis of modern privacy concepts, such as "a certain degree of freedom from the scrutiny of others and a certain amount of autonomy in making life decisions."216 The ways in which they conceptualized autonomy, however, varied greatly.

In The Leviathan, Hobbes, arguing against many of the practices of the English monarchy, wrote:

The right of nature, which writers commonly call jus naturale, is the liberty each man hath to use his own power as he will himself for the preservation of his own nature; that is to say, of his own life; and consequently, of doing anything which, in his own judgement and reason, he shall conceive to be the aptest means thereunto.217

Hobbes' s focus was on the ability to preserve one's life. He viewed the state of nature (the hypothetical, primitive condition of people before government) as being a state of pure liberty - a condition of lawlessness in which each person exercised unconstrained freedom to preserve his own life and maximize his own happiness, even if at the expense of the life and happiness of others.218 Life in the state of nature was, therefore, "solitary, poore, nasty, brutish, and short."219 Hobbes saw the formation of the state as a solution to living in the chaotic state of nature. Being rational, man surrendered unfettered liberty and autonomy to the sovereign as part of a social contract in which the government acts to preserve the lives of its citizens, thereby serving the common good.220 It should be noted, however, that to Hobbes, the social contract established the sovereign's power without question; thus, "rebellion or revolution is always wrong, regardless of government provocation."221 Clearly, later Enlightenment philosophers strongly disagreed with the Hobbesian view of man's moral obligation to obey the sovereign no matter what.

Locke also believed that all people were endowed with inalienable rights from nature, which included individual autonomy to act to preserve life. Unlike Hobbes, though, Locke also considered private property to be an important natural right.222 Locke viewed these rights much more expansively than Hobbes.223 For example, Locke viewed the right to life not just as granting one the ability to defend one's life in the name of selfpreservation, but as creating a corresponding responsibility not "to harm another in his life, health, liberty, or possessions . . . ."224 Given the reciprocal nature of these rights and responsibilities, Locke viewed the sovereign's failure to protect life, liberty, and property as warranting rebellion.225 Indeed, he viewed doing so as a duty, since failure to revolt under such circumstances would result in the renouncement of citizens' moral autonomy.226 However, liberty, for Locke, was constrained by the positive laws enacted by a duly elected legislative body.227

As more philosophers of the Enlightenment expanded upon each other's work, conceptualizations of the rights to life, liberty, and property were extended. Thus, for instance, Rousseau and Kant argued against slavery as a violation of the concept of liberty just as Locke did, but they also broadened the concept of liberty by connecting it to notions of autonomy to be one's "self or one's own "person."228 John Stuart Mill later used these ideas to argue that "individuality" was one of the core "elements of well-being."229

Advocates of revolution in the American colonies drew heavily from Enlightenment philosophy.230 In his pamphlet Common Sense, Thomas Paine advocated for the legal recognition of specific rights at the time of the birth of the United States, stressing that "[s]ecuring freedom and property" for all men should be core values of a free nation.231 Paine' s writings, along with those of the Enlightenment philosophers, strongly influenced Benjamin Franklin, Thomas Jefferson, John Adams, and other Founders.232 This is evident in the text of both the Declaration of Independence and the U.S. Constitution, both of which draw on not only the ideas of, but also the language used by, various Enlightenment writers.233

III. Privacy in Jurisprudential Thought

As the review of the bio-psychological, socio-cultural, and philosophical literature in Part II should make clear, privacy is conceptualized in a multiplicity of ways. The same is true in the law. Today, privacy is protected by constitutional doctrines as well as "hundreds of statutes in the United States and thousands of laws worldwide," resulting in privacy being described as "a concept in disarray."234 Nevertheless, scholars have attempted to bring some semblance of order to the often disjointed jurisprudence of privacy.235

In his 1992 article One Hundred Years of Privacy, Professor Ken Gormley, argued that the law recognizes five distinct legal "species" of privacy:

1) Tort privacy (Warren and Brandeis ' s original privacy) ;

2) Fourth Amendment privacy (relating to warrantless governmental searches and seizures);

3) First Amendment privacy (a "quasi-constitutional" privacy which exists when one individual's free speech collides with another individual's freedom of thought and solitude);

4) Fundamental-decision privacy (involving fundamental personal decisions protected by the Due Process Clause of the Fourteenth Amendment, often necessary to clarify and "plug gaps" in the original social contract);

5) State constitutional privacy (a mish-mash of the four species, above, but premised upon distinct state constitutional guarantees often yielding distinct hybrids).236

In this Part of our article, we explore these five approaches to privacy with slight modifications to accommodate changes in the law since the time Gormley developed his typology.

A. Privacy in Tort Law

In 1890, former Harvard Law School classmates Samuel Warren and Louis Brandeis published one of the most influential law review articles of all time. In this work, simply titled The Right to Privacy, they argued that the law needed to recognize "the right to enjoy life, - the right to be let alone."237 It should be noted that the oft-quoted phrase, "the right to be let alone" was actually coined by Judge Thomas Cooley in his treatise on torts at least two years prior to the publication of Warren and Brandeis' s article238 - a fact the authors acknowledged in their article.239

Warren and Brandeis traced the evolution of the common law in its expansion of the rights to life, liberty, and property in ways that mirrored the expansion of these notions in the writings of the Enlightenment philosophers.240 They then called for the law to recognize a right to privacy to protect people from the then-growing interference of press:

Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer. The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago, directly involved the consideration of the right of circulating portraits; and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before our courts for consideration.241

Brandeis and Warren went on to explain the different ways in which the common law protects life, liberty, and property. Next, they illustrated how then-existing legal doctrines, particularly in tort law, failed to adequately protect people from invasions of privacy that cause legal injury.242

Shortly after the publication of this article, judges began to take a more expansive view of privacy in tort litigation; but appellate courts, for the most part, did not embrace these attempts.243 In response to public criticism of an appellate decision failing to recognize a tort for invasion of privacy, the New York legislature enacted a statute in 1903 allowing people to sue for privacy invasions "where their 'name, portrait, or picture' was used without consent 'for purposes of trade.'"244 In 1905, however, the Supreme Court of Georgia recognized a common law tort for the types of privacy invasions about which Warren and Brandeis complained in their 1890 article.245 Notably, the court's rationale rested, in part, on the Enlightenment concepts of natural rights and the social contract:

The individual surrenders to society many rights and privileges which he would be free to exercise in a state of nature, in exchange for the benefits which he receives as a member of society. But he is not presumed to surrender all those rights, and the public has no more right, without his consent, to invade the domain of those rights which it is necessarily to be presumed he has reserved, than he has to violate the valid regulations of the organized government under which he lives. The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. Any person whose intellect is in a normal condition recognizes at once that as to each individual member of society there are matters private, and there are matters public so far as the individual is concerned. Each individual as instinctively resents any encroachment by the public upon his rights which are of a private nature as he does the withdrawal of those of his rights which are of a public nature. A right of privacy in matters purely private is therefore derived from natural law.246

The tort of invasion of privacy slowly spread throughout the United States, starting primarily in cases in which people had not consented to their photographs being taken and used in advertising, but later spreading to embrace the broader concept of privacy advocated by Warren and Brandeis.247 By the 1950s, most states had embraced some concept of a privacy tort.248 In his famous review of more than 300 such tort cases, Professor William Prosser discerned four distinct privacy torts had emerged, all of which impinged upon a plaintiffs right to be let alone:

(1) [i]ntrusion upon the plaintiffs seclusion or solitude, or into his private affairs. (2) [p]ublic disclosure of embarrassing private facts about the plaintiff. (3) [publicity which places the plaintiff in a false light in the public eye. (4) [appropriation, for the defendant's advantage, of the plaintiffs name or likeness.249

Prosser incorporated these four torts into the Second Restatement of Torts and, as a result, they are accepted as valid causes of action by "virtually all courts and commentators to the present day."250

Notably, Prosser' s taxonomy of privacy torts did not include a cause of action for breaches of confidentiality, even though a handful of courts recognized the tort by the time he published his law review article on privacy in I960.251 Richards and Solove explain that Prosser did not do so because the breach of confidentiality cases had not cited Warren and Brandeis in support of their origin and because these cases often involved contractual duties.252 Although Prasser eventually included the tort of breach of confidentiality in both the third and fourth editions of his treatise on torts, they were never adopted into the Restatement.253 As a result, breach of confidence torts "remained ignored and underdeveloped."254 Although confidentiality breaches did experience somewhat of a rebirth in the 1980s and 1990s, "it remains in a relatively obscure and frequently overlooked corner of American tort law."255

B. Fourth Amendment Privacy

Thirty-eight years after the publication of Warren and Brandeis' s article, Louis Brandeis, in his role as an Associate Justice of the U.S. Supreme Court, authored another highly influential piece on the right to privacy: his dissent in Olmstead v. United Stated.256 Olmstead upheld the admissibility of wiretapped phone conversations that were obtained by federal law enforcement officers without warrant. The majority rested its decision on the premise that since the wiretapping involved no physical trespass onto the defendants' property, there had been no Fourth Amendment violation.257 Using the same language in his dissent that he did in his 1890 article, Brandeis argued:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone - the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.258

Thus, the fact that there was no physical trespass to the defendants' home was not particularly relevant to Brandeis. Nearly forty years later in Katz v. United States?59 Brandeis's views prevailed when the Supreme Court overruled Olmstead's property-based approach to the Fourth Amendment and replaced it with the "reasonable expectation of privacy" approach that is still used today.

The adoption of Brandeis's view of the Fourth Amendment in Katz did not, however, fully embrace a "right to be let alone." Indeed, commentators still debate the vagueness of this concept and critique its lack of substantive guidance. For example, being "let alone" does not help law enforcement or the judiciary determine the areas that are constitutionally protected by the Fourth Amendment.260 Moreover, the concept does not really help the law discern the scope of privacy beyond Fourth Amendment search and seizure concerns. "If privacy simply meant 'being let alone,' any form of offensive or harmful conduct directed toward another person could be characterized as a violation of personal privacy. A punch in the nose would be a privacy invasion as much as a peep in the bedroom."261 Hence, the jurisprudence of the Fourth Amendment is significantly narrower than the language of Brandeis' dissent in Olmstead.

The most explicit expression of privacy rights in early American law are from criminal procedure "where even in the early days of colonial life there existed a strong principle, inherited from English law, that a 'man's house is his castle; and while he is quiet, he is well guarded as a prince in his castle.'"262 The English common law notion of one's home as "castle" can be traced back to at least 1505 in an opinion written by John Fineux, Chief Justice of the King's Bench.263 In spite of the castle doctrine, the British eventually developed laws and policies that assaulted the privacy of the dwelling, particularly when it involved taxes, as the king's customs office became authorized "to search wherever they wanted and to seize whatever they wanted, with few exceptions."264

Although the British people were victims of these encroachments, American colonists were even more susceptible to unreasonable searches and seizures because colonial magistrates were obliged to authorize general warrants requested by crown officers based on nothing more than mere suspicion.265 After the American Revolution, the Founders' disgust for abuses of general warrants (that were unsworn, unsupported by any particularized suspicion, and lacked any degree of specificity with regard to the person or place to be searched or the item(s) to be seized) led them first to adopt requirements for warrant specificity based on sworn, particularized suspicion or probable cause in the charters or declaration of rights of several of the new states and, later, in the text of the Fourth Amendment.266 Another protection of the home was also enshrined in the Third Amendment to the U.S. Constitution: a prohibition on the quartering of soldiers.267

In 1868, Judge Thomas Cooley published a treatise on constitutional law. In it, he specifically connected the text of the Fourth Amendment to a constitutional notion of privacy when he described privacy as:

[the] maxim of the common law which secures to the citizen immunity in his home against the prying eyes of the government, and protection in person, property, and papers even against the process of law, except in a few specified cases. The maxim that "every man's house is his castle" is made a part of our constitutional law in the clause prohibiting unreasonable searches and seizures.268

Eighteen years later in Boyd v. United States,269 a similar connection was made by the U.S. Supreme Court.

C. First Amendment Privacy

The right to be let alone manifests itself in strange and bizarre ways when it intersects with the First Amendment. Gormley describes this conceptualization of privacy as "a parasite" - "a counterweight which has latched itself onto" the First Amendment to restrict free speech and expression.270

In Gilbert v. Minnesota211 decided eight years before Olmstead, Justice Brandeis dissented from the Supreme Court's decision which upheld a law that criminalized the practice of discouraging men from enlisting in the military. The defendant had been convicted of violating the law after he criticized World War I.272 Brandeis would have invalidated the law since it sought to control what people said, even in "the privacy and freedom of the home."273 Although Brandeis was likely attempting to lay the groundwork for the subsequent adoption of his "right to be let alone,"274 Professor Gormley persuasively argues that Brandeis's view that privacy had "some place among the shade of the First Amendment was swiftly resurrected."275

In support of his argument, Gormley points to Martin v. City of Struthers, 276 a case which invalided a city ordinance barring door-to-door leafleting by Jehovah's witnesses. The concurring and dissenting opinions in the case express the beliefs that the interests of privacy in one's home need to be balanced against the freedom of speech.277 This was exactly the rationale used in Breará v. City of Alexandria, 278 in which the Court upheld an ordinance barring door-to-door solicitations. Justice Reed, applying the logic of his dissent in Gilbert v. Minnesota, this time wrote for the majority, reasoning that the case called for balancing "the conveniences between some householders' desire for privacy and the publisher's right to distribute publications in the precise way that those soliciting for him think brings the best results."279 The same type of balancing test was also applied to curb speech, even outside the home, such as on billboards, in cases applying the "captive audience" doctrine.280

Perhaps the case that makes it most clear that the First Amendment encompasses some notion of privacy related to freedom of thought is Stanley v. Georgia(TM) In invaliding a conviction for possession of obscene materials in the home, Justice Marshall wrote:

If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.282

Gormley acknowledges that free speech and expression sometimes prevail over privacy claims.283 However, the fact that the courts automatically resort to a balancing test in which they weigh the speaker's rights to free expression against the privacy rights of an unwilling listener (or viewer) in First Amendment cases is strong proof that the First Amendment embodies a distinct conceptualization of the right to be let alone. For private persons, this right is strongest in the home.284 In contrast, when public figures seek privacy from the often-invasive press, "the weighty guns of the First Amendment" typically trump privacy concerns.285

D. Substantive Due Process Protection of Private Liberty Interests

The most controversial of the privacy concepts is the one arising out of the nebulous contours of the liberties protected by substantive due process. In 1992, Gormley referred to this species of privacy as "fundamental decision privacy."286 At the time he did so, that descriptor was appropriate, especially in light of the Supreme Court's decision in Bowers v. Hardwick.287 In the years since Gormley developed his typology, the Supreme Court has backed away from its reliance on fundamental rights in adjudicating the scope of privacy as guaranteed by substantive due process and has embraced a broader concept of liberty more akin to the autonomy concepts espoused by the philosophers of the Enlightenment, especially in its decision in Lawrence v. Texas.288 Accordingly, this approach to privacy is better conceptualized in the post-Lawrence era as protecting Fourteenth Amendment liberty interests through the operation of substantive due process.289

Most commentators, like Gormley,290 begin their study of this form of privacy with the landmark 1965 case: Griswold v. Connecticut.2 However, the early roots of the interplay between privacy, liberty, and substantive due process can be traced back long before Griswold to two cases which have been described as the "direct judicial antecedents" of the contemporary right to privacy grounded in substantive due process.292

1 . The Harbingers of Griswold

Forty-two years before Griswold, the Supreme Court decided Meyer v. Nebraska.293 In 1919, Nebraska enacted a statute prohibiting teaching any subject in a language other than English and prohibiting foreign language instruction until after the completion of the eighth grade, with the exception of Greek, Latin, or Hebrew.294 The statute purportedly targeted two aims: "to promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals" and to insure that "the English language should be and become the mother tongue of all children reared" in Nebraska.295 The historical context of the law, however, suggests that its true purpose may have been less noble, as it was likely a xenophobic response to immigration in the World War I era, especially against GermanAmericans.296

In reserving a teacher's conviction for violating the law by having taught German in a parochial school affiliated with the Lutheran Church, the Court held that the statute violated the "liberty guaranteed ... by the Fourteenth Amendment."297 Citing a string of more than a dozen cases, the Court reasoned:

While this [C]ourt has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.298

Meyer v. Nebraska is significant because it was the first case in which the U.S. Supreme Court determined that people had non-economic liberty rights not specifically listed in the Constitution.299 The Court applied Meyer in Bartels v. Iowa300 to invalidate similar English-only language instruction laws.301 Two years later, the Court relied on Meyer when it decided Pierce v. Society of Sisters of the Holy Names of Jesus and Mary - another significant case in the development of privacy rights in a substantive due process framework.302

Again in the wake of World War I, Oregon enacted a law which required "every parent, guardian, or other person having control or charge or custody of a child between [eight] and [sixteen] years to send him 'to a public school for the period of time a public school shall be held during the current year' in the district where the child resides."303 A corporation formed by a group of Roman Catholic nuns dedicated to providing parochial education within the tenants of that faith challenged the law on the grounds that it conflicted "with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents' choice of a school, [and] the right of schools and teachers therein to engage in a useful business or profession . . . ."304 Citing Meyer, the Court invalidated the law, explaining that it "unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control."305

The Supreme Court's reliance on the Fourteenth Amendment in the privacy context continued with Skinner v. Oklahoma.306 In that case, the Court invalidated a law which required the sterilization of habitual criminal offenders.307 Although decided primarily on Equal Protection Clause grounds because of the disparate nature of the offenses which qualified under the terms of the statute,308 the Court made it clear that the law raised significant liberty concerns as well:

We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.309

Two cases decided in the Warren Court era embraced a substantive due process rationale when applying the Fifth and Fourteenth Amendments' guarantees of liberty to the unenumerated right to travel. In both Kent v. Dulles310 and Aptheker v. Secretary of State,3U the Court invalidated restrictions on the issuance of passports to suspected communists, explaining that the "right to travel is a part of the 'liberty' of which [a] citizen cannot be deprived without due process of law . . . ."312

2. Griswold ana Subsequent Substantive Due Process Privacy Cases

In the 1950s and 1960s, several states enacted statutes313 which, like Connecticut, criminally prohibited any person from using "any drug, medicinal article or instrument for the purpose of preventing conception."314 Moreover, Connecticut's inchoate liability statute applied in such a way as to create criminal liability for physicians and family planning counselors who provided information regarding the use of contraceptives.315 Two such health-care providers were arrested and charged with providing "information, instruction, and medical advice to married persons as to the means of preventing conception."316

In striking down the anti-contraceptive law at issue in Griswold, the Supreme Court discussed both Meyer and Pierce, and "reaffirm[ed] the principle" of the holdings of those cases.317 The Court also discussed several First Amendment cases which had embraced the "peripheral" rights of "freedom to associate and privacy in one's associations."318 The Court cited the protections of the Third, Fourth, Fifth, and Ninth Amendments as well to support the proposition "that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance" and that these penumbral guarantees create zones of privacy. 319 The Court then stated:

The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.320

Notably, the Griswold decision was limited to protecting a right to privacy in the marital setting, a fact key to the Court's rationale.321 Seven years later, the Court extended Griswold' s protections to unmarried persons in Eisenstadt v. Baird322 on equal protection grounds.323 "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."324 The Court further extended the right to privacy in this area in Carey v. Population Services, International when it invalidated a law that permitted distributions of contraceptives only by licensed pharmacists.325

In 1967, the U.S. Supreme Court invalided all remaining laws in the United States barring inter-racial marriage in Loving v. Virginia326 The Court based its decision on both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.327 In support of the latter rationale, the Court offered only a single paragraph which read:

Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State.328

Thus, although Loving made it clear that the unenumerated right to marry is protected by substantive due process, it "did not expressly tie this right to the right of privacy recognized two years earlier in Griswold, nor did the Court even cite Griswold in its analysis of the" miscegenation statutes at issue in the case.329 It did, however, expressly tie marriage and privacy in Zablocki v. Redhail330 when the Court invalided a Wisconsin statute that prohibited noncustodial parents from marrying without first obtaining court approval that could only be granted upon a showing that the petitioner was current with child support payments.331

Undoubtedly the most famous and controversial of the substantive due process privacy cases is Roe v. Wade.332 The analysis in Roe began with an articulation of privacy grounded in substantive due process expressed more clearly than in prior cases when it stated "the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution."333 The Court then went on to hold that this right to privacy was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."334 The Court made clear, however, that this right was limited by the way in which it balanced the rights of the fetus, the pregnant woman, and state within a trimester framework.335 Years later, the Supreme Court reaffirmed the right to privacy as it applies in the abortion context in Casey v. Planned Parenthood of Southeastern Pennsylvania336 although Casey clearly did away with the trimester framework announced in Roe. In its place, Casey set forth a different framework for examining whether a state -imposed restriction on abortion is constitutional: whether the restriction poses an "undue burden" on the ability to have an abortion.337 Although many cases have fleshed out the parameters of the right to privacy as it applied to abortion rights within the confines of Roe338 and Casey339 Roe's central holding placing the decision whether to have an abortion within the liberty protection of the Due Process Clause remains viable as of the date of this writing.

In the wake of privacy cases discussed above - most especially Griswold and Roe - the Supreme Court's decision in Bowers v. Hardwick3*0 came as a surprise to many. Bowers' upholding of sodomy laws represents the "only major area in which the Court has erected a clear barrier against expansion of the right of privacy."341 Key to the Court's rationale in Bowers was that sodomy did not involve any "fundamental right," 342 such as child-rearing and education,343 marriage,344 or procreation.345

The majority opinion in Bowers was sharply criticized by the dissenting justices346 and many commentators347 for having framed the issues much too narrowly, especially since Griswold, Eisenstadt, and Roe could have been interpreted as guaranteeing that adults had a privacy right "to engage in non-procreative sexual relations, even outside the traditional setting of marriage."348 But Bowers was overruled - less than twenty years after it was decided - by Lawrence v. Texas,349 albeit using a very different approach than that used in the line of privacy cases leading up to Bowers.

3. Lawrence v. Texas: Privacy as Protected Liberty Interest

The Lawrence majority acknowledged that the framing of the issue in Bowers was mistaken because it failed to "appreciate the extent of the liberty at stake" because sodomy laws regulated "the most private human conduct, sexual behavior, and in the most private of places, the home." 350 The Court used broad and sweeping language in Lawrence in its discussion of liberty, drawing heavily on Enlightenment principles of autonomy:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions. 51

The Court even made passing mention of the utilitarian "harm principle" when it wrote that the government should not proscribe conduct on the basis of morality "absent injury to a person or abuse of an institution the law protects."352

Lawrence's embrace of "liberty" - a word used in the actual text of the Fourteenth Amendment - has caused some to question whether the Supreme Court moved away from the substantive due process protection of privacy.353 Even if the Court purposely retrenched from an analytical framework that tied a right to privacy to the Due Process Clause (something that will only become clear in time), Lawrence makes clear that substantive due process remains a viable protector of a certain form of privacy by placing certain intimate conduct between consenting adults beyond the reach of state regulation.

E. State Protection of Privacy Beyond Tort Law

Gormley named his final species of privacy "State Constitutional Privacy."354 He did so because the "New Federalism" that emerged in the last quarter of the twentieth century led to other forms of privacy sometimes being even more strongly protected by state courts interpreting their own state constitutional protections.355 As Gormley pointed out, several states "rewrote or amended their constitutions to guard against unreasonable 'invasions of privacy, ' some making specific reference to interceptions of communications or electronic eavesdropping, inspired by Katz."356 Other state courts built on the Griswold and Roe decisions by finding penumbras of privacy in their own state constitutions, often in ways that guaranteed more privacy protections than federal law.357 This was especially the case with regard to the Fourth Amendment privacy rights once the Burger and Rehnquist courts began to scale back the rights of the criminally accused that were announced by the Warren Court.358 Gromley explains:

South Dakota, Montana and Alaska early on rejected the U.S. Supreme Court decision in South Dakota v. Opperman, finding that their own brands of privacy did not permit warrantless inventory searches of impounded vehicles. The highest courts of Michigan, New Hampshire, Montana, Alaska and Florida all declined to follow United States v. White, which had permitted wired government informants to monitor and record surreptitiously conversations with suspects without a warrant .... Several states swiftly denounced the Supreme Court's decision in United States v. Ross, which had permitted the warrantless search of closed containers as part of an automobile search. Idaho forbade the use of pen registers (devices used by the government to record numbers dialed on telephones), notwithstanding Smith v. Maryland which permitted such technology under the Fourth Amendment. North Carolina, Connecticut, New Jersey, and . . . Pennsylvania rejected the controversial decision of United States v. Leon, finding that the states' strong interest in privacy from unlawful searches and seizures precluded the adoption of a "good faith exception" to the exclusionary rule. [And, a] myriad of other miscellaneous state constitutional decisions appeared, constructing safe harbors for privacy where the federal Bill of Rights no longer offered a sanctuary.359

Since the time Gormley developed his typology, the states have continued to experiment with privacy rights, often in response to technological developments360 or the ever-increasingly invasive nature of the press, especially the paparazzi.361 While most of these developments involve the creation of new types of torts, states have also experimented with other forms of law to protect privacy, such as criminal laws against stalking, harassment, cyberbullying, and various computer crimes like hacking.362 Privacy under state law is, therefore, not only far more robust than the basic privacy torts about which Prosser wrote in the final volume of his famed torts treatise,363 but also broader than it was in 1992 when Gormley developed his typology of the different privacy species. Accordingly, we think it appropriate to rename his final, catch-all category "State Protection of Privacy Beyond Tort Law."

IV. Investigating Reasonable Expectations of Privacy

As the review of the literature and case law presented in Part III of this article illustrates, "the quest for a singular essence of privacy leads to a dead end."364 In spite of the volumes that have been written about privacy in its various conceptualizations, scholars continue to call for more research on the topic - especially as the confluence of the Information Age and the War on Terror have the potential to erode the protections of the Fourth Amendment further.

Much more research also needs to be conducted to assess the impact of changes in U.S. surveillance and search and seizure jurisprudence on the privacy rights of citizens. Privacy advocates correctly warn against the erosion of civil liberties. As police surveillance authority expands its effect on both public safety and civil liberties, the effect on privacy must be measured to ensure that venerated democratic ideals are protected while promoting police efficacy.365

The present research is an attempt to answer this call by providing an empirical context for understanding different societal conceptualizations of privacy rights within Katz' s reasonable expectation of privacy framework.

A. Prior Empirical Research on Reasonable Expectations of Privacy

To our knowledge, the present study is only the second ever to investigate reasonable expectations of privacy from an empirical perspective. The first was conducted in 1993 by Professors Christopher Slobogin and Joseph Schumacher.366 They asked 217 people to rank fifty activities on a scale from 0 to 100, with 0 representing a complete lack of intrusiveness and 100 representing extreme intrusiveness.367 Respondents were told to assume that the suspect was innocent of any wrongdoing. Slobogin and Schumacher varied the way in which they asked the subjects to rank-order the behaviors between first-person and third-person questions (e.g., "a search of your garbage can" vs. "a search of a garbage can").368 They also varied the presence or absence of an evidence condition (e.g., "a search of your garbage can for evidence of forgery" vs. "a search of your garbage can").369 Based on the participants' responses, they rank-ordered the behaviors from least to most intrusive.370 They also administered the twenty-two item "Attitudes Toward Crime Control Scale" to discern if respondents were more crime control or due process oriented.371

Slobogin and Schumacher tested four hypotheses. First, they expected that many of the U.S. Supreme Court's "conclusions about expectations of privacy and autonomy [did] not correlate with actual understandings of innocent members of society."372 Second, by comparing the first- and third-person responses, they expected that "searches or seizures of one's own property or person are perceived as more intrusive than those of others."373 Third, they expected that police actions tied to an evidentiary purpose would be viewed as less intrusive than searches or seizures without a clear investigatory aim.374 Finally, they expected that respondents who subscribed to a more crime control perspective of the criminal justice system would view actions as less intrusive than those who aligned themselves more with the due process model.375 Their first hypothesis was partially supported, their second and third were supported, and their fourth was not.376

The ten most invasive police behaviors were the following: a body cavity search at the border; monitoring a phone for thirty days; reading a personal diary; searching a bedroom; needle in arm at work to get blood; searching a mobile home; boarding a bus and asking to search luggage; searching a college dormitory room; tapping into a corporation's computer; searching a high school student's purse; and hospital surgery on shoulder.377 Other notable findings include several areas of seeming disagreement with U.S. Supreme Court precedent. For example, even though the Court has held that no reasonable expectation of privacy is violated by the use of undercover agents, survey respondents found the use of informants to be fairly invasive.378 Similarly, although the Court ruled in United States v. Miller that a bank depositor has no reasonable expectation of privacy in commercial bank transactions, respondents ranked police "perusing bank records" as the twelfth most invasive activity on the survey.379 Respondents also ranked both "police entry onto fenced-in private property outside the curtilage of the home" and dog sniffs of one's body as being in the top half of the invasive activities.380 Yet, the U.S. Supreme Court has held that the former does not constitute a search for Fourth Amendment purposes381 and has hinted that the latter may similarly not implicate the Fourth Amendment either, even though some U.S. Circuit Court of Appeals have held to the contrary when a dog sniff of a human body occurs under certain circumstances.382

Four limitations of Slobogin and Schumacher's study should be noted. First, more than half of the survey respondents were law students at two universities in the early 1990s. The homogeneity of this group may have limited the generalizability of the study, a limitation the authors acknowledge. This is a minor concern, however, as most social scientific studies of judicial decision-making involve surveys or simulations that may or may not have external or ecological validity due to the plethora of difficulties researchers experience when trying to access judges.383 Such studies, including those that use student-participants as substitutes for courtroom decision-makers, tend to provide reasonably accurate data concerning the behavior of actual courtroom participants.384

Second, the instructions directed survey respondents to rate "the extent to which they considered each method 'an invasion of privacy or autonomy.'"385 Given that privacy includes domains that go beyond autonomy, the instructions may have caused the survey respondents to conflate distinct concepts of privacy with the one most frequently affiliated with liberty interests protected by substantive due process.386 Admittedly, this limitation is minor, but because law students are likely to note distinctions between different conceptualizations of privacy under the First, Fourth, and Fourteenth Amendments as a function of their legal education, this threat to construct validity should be noted. Slobogin and Schumacher attempted to minimize this limitation by using 52 law students who had not yet taken a course in criminal procedure, 79 undergraduate students, 6 1 law students from Australia, and 25 members of the community from Gainesville, Florida.387

Third, the survey presented some respondents with short phrases, such as the ten listed above, without regard to any context. For example, the fifteenth most invasive behavior was "questioning on public sidewalk for 10 minutes."388 Although a brief, limited investigative detention under Terry v. Ohio389 may be considered intrusive in certain contexts, such as when a stop occurs for no apparent reason, it may not seem intrusive under other circumstances, such as when a person fits the profile of a missing person. Without additional context, the questions posed to survey respondents in the non-evidentiary group amount to abstractions that call into question the construct and predictive validity of the study.

Finally, and perhaps most importantly, given the study's methodology, it produced only relative findings; for instance, "perusing bank records" was ranked the thirteenth most invasive activity, while using personal assistants (like a secretary or a chauffeur) as informants ranked seventeenth and twentieth, respectively.390 The results, therefore, do not help judges or scholars understand which of the intrusive behaviors should be viewed as infringing upon a reasonable expectation of privacy.

B. Comparison of the Present Study to Slobogin and Schumacher's

We attempt to improve upon Slobogin and Schumacher's methodology by using a larger, more diverse sample drawn from more geographic areas; by controlling for knowledge of constitutional criminal procedure; by omitting instructions that attempt to define privacy; by providing all respondents with more complete fact patterns to allow them to contextualize the police actions at issue in governing Fourth Amendment precedent; and by using Likert scales that measure levels of agreement or disagreement with case holdings so that the data provide an empirical understanding into when particular actions by law enforcement intrude upon reasonable expectations of privacy.

Our study also differs from Slobogin and Schumacher's in three other ways. First, we did not investigate the concept of intrusiveness. We focused on measuring levels of agreement or disagreement with leading Fourth Amendment precedent, primarily in the area of warrant exceptions. Second, rather than measuring crime control and due process dispositions, we used a series of thirteen demographic and attitudinal variables more commonly used in social scientific research to investigate relationships between the respondents and their opinions concerning reasonable expectations of privacy.391 Finally, because we were interested in testing whether judicial assessments and societal perceptions concerning reasonable expectations of privacy aligned with each other, we did not investigate differences in first-person and third-person perceptions.

Still, the present study's research findings and conclusions must be viewed in congruence with the limitations of the research design. As with Slobogin and Schumacher's study, the external validity of the present study may be constrained by the population from which the research sample was drawn; college students and faculty comprise the overwhelming number of participants. However, to minimize this threat to the external validity, the present research uses a large sample drawn from twelve colleges and universities located in eleven different U.S. states, thereby increasing the representativeness of the sample. Additionally, steps were taken to minimize threats to the external validity of the study by soliciting survey responses from Facebook users, thereby further diversifying the population from which the sample was drawn.

In the next Part of this article, we explain the methods used to conduct this study and the specific research questions and hypotheses tested.

V. Methodology

A. Materials and Participants

1. Survey

This study uses primary data from the Reasonable Expectations of Privacy Survey constructed by the authors. The survey consists of thirteen demographic and attitudinal questions, eleven short fact-pattern questions, and ten longer fact-pattern questions, each of which consisted of several variations of a basic fact pattern.

The demographic and attitudinal questions asked respondents to identify their sex; their age; their racial or ethnic background; their relationship status; their political party affiliation; how liberal or conservative they considered themselves to be; their religion; how religious they considered themselves to be; how frequently they attended religious services; their annual income; the highest level of education they had completed; their major if they had attended college; and whether they had ever taken a course in constitutional criminal procedure.

All of the fact-pattern questions were formulated using leading Fourth Amendment cases, which included cases on each of the major zones of privacy identified in Part II. The specific types of intrusion and the precedent supporting a warrantless intrusion into that sphere of privacy are summarized in Table 2.

2. Procedures

After the survey was approved for administration by the Institutional Review Board at the authors' university, the survey was uploaded onto www.surveymonkey.com. Survey Monkey is an online database that allows its users to create and distribute surveys via the Internet. To minimize all possibilities of data piracy, Survey Monkey stores all data on a secure server with 24-hour surveillance, firewall restrictions, SSL encryptions, and hacker-safe scans, which are performed daily. In addition to securing all data, steps were taken to ensure a certain level of anonymity. By configuring the online survey so that it did not trace the participants Internet Portal (IP) address, it is nearly impossible to link survey results with the participants.

3. Participants

Participants were solicited in two ways. First, the lead author sent an email invitation to students and faculty at eleven U.S. colleges and universities asking prospective survey respondents to take the survey.392 These institutions were selected for geographic diversity and for the sake of convenience, since the researchers had contacts at these universities who were willing to forward the email solicitation to students in various majors at their respective universities. Second, people were also solicited through Facebook, an online social networking community, by providing a brief explanation of the research and uploading a link to the online survey. The Facebook solicitation also encouraged participants to invite their friends to take the survey in hopes of creating a snowball effect.

A total of 589 people participated in this study: among those who stated their sex, 340 (61.9%) were female and 209 (38.1%) were male; 40 (6.8%) declined to state their sex. Among those stating their race, the diverse sample included 48 (8.8%) African-Americans, 182 (33.5%) Latinos/Hispanics, 62 (11.4%) Asian/Pacific Islanders, and 251 (46.3%) Whites; only 46 (7.6%) declined to state their racial/ethnic background. Participants ranged in age from 17 to 61, with a mean age of 23 years and a standard deviation of 7 years. Other demographic and attitudinal data are presented in Part V of this article.

B. Measures

The independent variables were measured using demographic and attitudinal questions. These included: sex, ethnicity, age, relationship status, political party affiliation, political views, religion, religiosity, religious attendance, income, level of education, major, and whether the respondent had ever taken a course in constitutional criminal procedure. Age was coded in years as a ratio-level variable. Five variables were coded as ordinal variables: levels of political conservativeness or liberality (1 = very liberal; 5 = very conservative); religiosity (1 = extremely, devoutly religious; 5 = not at all religious); religious attendance (1 = daily; 5 = never); income (1 = below $30,000; 7 = over $150,000); and education (1 = high school diploma or equivalent; 5 = completed graduate degree). Responses to the remaining demographic and attitudinal questions were all coded as nominal variables.

The dependent variables consisted of the respondents' level of agreement with the holding of leading Fourth Amendment cases after explaining the operable facts of the cases to participants, as well as some variations on the fact patterns to discern what changes in fact might alter the respondents' opinions. Respondents were asked to indicate their level of agreement with each of the privacy scenarios using a 5 -point Likert scale (1 = strongly disagree, 2 = disagree, 3 = neither agree nor disagree, 4 = agree, and 5 = strongly agree). For the purposes of chi-square analysis, these data were collapsed into dichotomous formats: agree (which included all agree and strongly agree responses) and disagree (which included all disagree or strongly disagree responses. Responses of "neither agree nor disagree" were excluded from the chi-square analysis.

C. Research Question and Hypotheses

Based upon Slobogin and Schumacher's study and the findings of empirical research summarized in Part II of this article, we approached our study seeking insight to a single, overarching research question, as well as four specific hypotheses. The primary research question we investigated was to test the degree to which the opinions of society members align with judicial rulings with regard to whether certain expectations of privacy are reasonable in the search and seizure context. We were particularly interested in learning how the ordinal rankings presented in Slobogin and Schumacher's landmark study aligned with actual judgments about the reasonable expectations of privacy.

In addition to investigating the primary research question, we were also interested in testing four specific hypotheses.

First, because the ludeo-Christian and Islamic traditions all embrace a various notions of privacy,393 we expected that religion would not be significantly associated with any of the dependent variables.

Second, based on the leading anthropological studies of privacy,394 we expected that race/ethnicity would be significantly related to opinions on reasonable expectations of privacy. Specifically, we hypothesized that people hailing from noncontact cultures would be more likely to disagree with precedent authorizing warrantless invasions of bodily, territorial, and information privacy than people from close-contact cultures.

Third, based on the leading social-psychological studies of privacy,395 we expected that men's psychological needs for higher levels of bodily and territorial privacy would make them more likely to disagree with precedent authorizing warrantless invasions of bodily and territorial privacy than women.

Fourth, based on the leading social-psychological studies of privacy,396 we expected that women's greater desire for informational privacy would make them more likely to disagree with precedent authorizing warrantless invasions of informational or communications privacy than men.

D. Data Analyses

1 . Overall Agreement with Leading Privacy Precedent

The research question was investigated by calculating the number and percentage of respondents agreeing or strongly agreeing with the outcome of a particular privacy fact-pattern and comparing that figure, using a one-way chi-square goodness of fit test, to the number and percentage of respondents disagreeing or strongly disagreeing with that outcome.

2. Scale Construction for Bivariate and Multivariate Analyses

The dependent variables for the bivariate and multivariate regression analyses were four privacy scales measuring expectations of bodily privacy, territorial privacy, informational privacy, and communications privacy as summarized above in Table 2. Each of the variables was computed by combining responses from multiple survey items into a single scale. The individual survey items were all scored using a five-point Likert-type scale with responses ranging from "Strongly Disagree" to "Strongly Agree." For most of the items, "agree" responses were indicative of support for protecting privacy (e.g. the police do NOT have a right to search without a warrant, schools are NOT permitted to drug test students randomly, etc.). Items that were presented in the opposite fashion were reverse coded prior to being included in the final scale. In order to make interpretations of the findings across the different privacy scales easier, each of the final scales was adjusted to have the maximum value equal 100, with higher values on each scale reflecting support for the protection of privacy rights. Information about each of the individual privacy scales is included in Table 3.

As Table 3 demonstrates, three of the four scales had reliability levels of .70 or higher and, therefore meet the standard levels of reliability for internal consistency.397 The communications privacy scale, however, had a Cronbach's alpha coefficient of .60, which is a bit lower than the generally-accepted standard of .70 for a scale's internal consistency. The low alpha value was likely due to the fact that only five items were used to create the scale. However, the mean inter-item correlation value between the items included in the scale was .233, which is a strong enough value to justify combining these items into one scale.398

VI. Results

A. Demographic and Attitudinal Variables

Table 4 contains the frequency distributions for all categorical demographic and attitudinal variables.

B. Research Question Results

1 . Chi-Square Goodness-of-Fit Tests for Levels of Agreement with Precedent

The levels of agreement with judicial assessments concerning reasonable expectations of privacy with respect to bodily, territorial, and information/communications privacy are presented in Tables 5, 6, and 7, respectively.

2. Multivariate Analyses

Prior to constructing multivariate models for each of the privacy scales, individual bivariate linear regression analyses were conducted to examine associations between each of the independent variables and each of the four privacy scales. Of the thirteen different independent variables included in the models, seven were found to be significantly associated with one or more of the privacy scales. These included: age with territorial privacy (F=5.496, r^sup 2^=.028, p<.01); political affiliation with territorial privacy F=4.468, r^sup 2^=.024, p<.01) and communications privacy (F=4.907, r^sup 2^=.022,p<.01), religion with bodily privacy (F=5.562, r^sup 2^=.042, p <.01); religious attendance with bodily privacy (F=2.514, r^sup 2^=.019, p<.05) and communications privacy (F=4.258, r^sup 2^=.020, p<.05); education with territorial privacy (F=7.140, r^sup 2^=.037, p<.01) and communications privacy (F=8.120, r^sup 2^=.038, p<.001); college major with bodily privacy (F=4.757, r^sup 2^=.012, p<.05), information privacy (F=5.643, r^sup 2^=.014, p<.05), and communications privacy (F=5.323, r^sup 2^=.013, p<.05); and whether the respondent had ever studied constitutional criminal procedure with informational privacy (F=5.939, r^sup 2^=.015, p<.05).399 Sex, race, marriage/relationship status, political view, religiosity, and income were not significantly associated with any of the privacy scales.

Four different multivariate linear regression models were constructed (one for each of the privacy domains/scales). For each model, independent variables whose association with the privacy scale had a pvalue of .05 or less in the bivariate analysis were included in the multivariate model. The results of the final models are presented in Table 8.

The two variables with the strongest impact on expectations of privacy across the four different domains were political affiliation and educational level. Republicans generally had lower support for the protection of privacy than Democrats and were significantly lower in two of the privacy domains (territorial and communications). Specifically, Republicans scored approximately three points lower on the territorial privacy scale and four points lower on the communications scale.

Education was an important factor across all four domains. In the domains of body and territory, individuals who had higher levels of education reported less support for privacy protections than individuals who had only a high school degree. However, more educated individuals reported stronger support for privacy protections in the areas of information and communications. Specifically, individuals with a bachelor's degree scored nearly seven points higher on the communications privacy scale than individuals with only the equivalent of a high school diploma.

Focusing on bodily privacy, five different factors had significant bivariate associations with the bodily privacy scale and were included in the multivariate model. These included political affiliation, religion, religious attendance, educational level, and college major. However, in the multivariate model, only religion and educational level retained their significance. For religion, individuals who were agnostic/atheist reported higher levels of support for the protection of bodily privacy than Catholics (agnostic/atheists scored 5.27 points higher on the 100 point scale than Catholics). For education, individuals who had at least some level of college education reported lower levels of support for the protection of bodily privacy than individuals who only had a high school level education (individuals with some level of college education scored 2.95 points lower than individuals with only high school level education).

VII. Discussion

A. Views on Reasonable Expectations of Privacy

As stated above, the primary goal of this study was to investigate whether societal views on whether a subjective expectation of privacy was objectively reasonable aligned with judicial determinations concerning reasonable expectations of privacy as expressed in the holdings of leading Fourth Amendment cases.

1. Bodily Privacy

As Table 5 illustrates,401 respondents concurred with precedent providing Fourth Amendment protection to bodily privacy while generally disagreeing with cases which upheld invasions of bodily privacy as "reasonable." Specifically, respondents agreed, by a roughly 49% to 33.1% margin (X2 (i)=1 4.786; p<.001), with the holding of Winston v. Lee*02 that surgery, without the consent of the person being operated upon, constitutes such an invasion of privacy that it would be unreasonable even if likely to produce evidence of a crime. There was similar agreement with the holding in Safford Unified School Dist. v. Redding;403 79.3% of respondents agreed that a strip search of a student for evidence of contraband drugs, even upon particularized suspicion, is not "reasonable" under the Fourth Amendment-just 7.9% disagreed (X2a)=243.000; p<.001). Further, by more than a two-to-one margin, respondents also agreed with various circuit court of appeals' precedents which held that close-proximity "dog sniffs" of people for evidence of contraband violate a reasonable expectation of bodily privacy (X^sup 2^^sub (1)^=48.516; p<.001).404

Conversely, there was overwhelming disagreement with two leading cases in which the U.S. Supreme Court held that the Fourth Amendment did not protect bodily privacy. First, more than 75% of respondents rejected the holding in Veronia School Dist. 47J v. Acton405 that random (i.e., suspicionless) drug testing of high school student athletes is a reasonable intrusion of bodily privacy (X^sup 2^^sub (1)^= 179.263; p<.001). An even higher percentage of respondents, 83.2%, disagreed with Atwater v. City of Lago Vista's406 holding that an arrest for a minor traffic violation, such as not wearing a seatbelt, constitutes a reasonable seizure under the Fourth Amendment (X^sup 2^^sub (1)^=283.549;p<.001).

Responders were split in their support for warrantless seizures of blood samples from DUI suspects as authorized in Schmerber v. California.401 A plurality of 46.6% disagreed with the Court's holding, while 41.8% agreed; this difference, however, was not statistically significant (X^sup 2^^sub (1)^=1.327;p= n.s.). Respondents were also divided, almost to the person, with respect to whether police should be able to conduct a warrantless search of a vehicle's passenger if they have probable cause to believe that the vehicle contains contraband (X^sup 2^^sub (1)^=0.003;p= n.s.).408

The only bodily privacy cases in which respondents concurred, to a statistically significant degree, that invasions of bodily privacy were constitutionally reasonable were those upholding drug testing of certain types of employees whose unimpaired performance on the job is necessary to ensure public safety, such as train conductors, airline pilots, and police. In fact, 80% of respondents concurred with the holdings in Skinner v. Railway Labor Executives' Association409 and National Treasury Employees Union v. Von Raab (X^sup 2^^sub (1)^=259.645;p<.001)410

2. Territorial Privacy

As with bodily privacy, the results presented in Table 6 suggest that respondents embrace a more comprehensive scope of reasonable expectation of privacy in the realm of territorial privacy than the courts have.411 In fact, societal conceptualizations of reasonable expectations of privacy concerning property run contrary to the overwhelming number of Fourth Amendment warrant exceptions.

a. Privacy in One's Vehicle

By a 52.3% to 35.8% margin, respondents rejected the so-called "automobile exception" to the Fourth Amendment's warrant requirement as set forth in Carroll v. United States (X2(1)=12.902; p<.001)412 A plurality of 46.4% of respondents similarly disagreed with the outcome in Wyoming v. Houghton, although with 38.6% expressing agreement with the decision, the difference was not statistically significant (X2(1)=2.909;p = n.s.). There was marginally more support, 45.3%, for the U.S. Supreme Court's ruling in Arizona v. Gant, which rejected police authority to conduct a warrantless search of a motor vehicle incident to the arrest of its driver unless it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.413 However, 42% disagreed with the Gant decision (X2 (i)=0.598; ? = n.s.). This lack of a significant difference suggests that even though the decision limited law enforcement's ability to conduct a warrantless search of a motor vehicle, it may not have gone far enough to protect the privacy interests that an arrestee maintains in his or her vehicle.

b. Privacy in One's Home

Respondents overwhelmingly disagreed with many of the warrant exceptions that allow law enforcement officers to conduct warrantless searches of private homes. Somewhat surprisingly, more than half of respondents rejected the use of both the plain view doctrine414 (X2(i)=41.195; p<.001) and the plain smell doctrine415 (X2 ?= 15.919; p<.001) as means of allowing law enforcement officers to search for or seize evidence inside a private residence without a warrant. Notably, although respondents rejected the applicability of the plain view doctrine as it applies to police officers looking through the windows of a residence, they agreed with the holding of Chimmel v. California416 by a 52.2% to 35.4% margin that evidence found in plain view as a result of conducting a protective sweep of a home during the execution of a valid arrest warrant should be admissible (X2(I)=15. 71;p<.001).

The only territorial privacy case with a fact pattern relevant to privacy within the home to garner significant support was Kyllo v. United States. m By a margin of nearly 60% to 24%, respondents overwhelmingly agreed that police should not be able to use thermal imaging devices to "see" into a private home in a manner that would not have been possible without a physical intrusion prior to the advent of such technology (X^sup 2^^sub (1)^=64.655;p<.001).

c. Privacy Around One's Home

The results from questions probing respondents' beliefs about curtilage and open fields provide further evidence of hostility to warrant exceptions that permit invasions of territorial privacy. Nearly three-quarters of respondents rejected the holding in United States v. Dunn418 that barns, sheds, and similar outbuildings which are not fenced-in and lie many yards from a suspect's house are not within the "curtilage" of the home and, therefore, no warrant should be needed to search such structures (X2 (Jj =201. 736; p<. 001). Similarly, two-thirds of the respondents disagreed with the holding of Oliver v. United States4*9 insofar as they believed that posting "no trespassing" signs around open fields created a reasonable expectation of privacy such that the warrantless search of such lands should not be legally permissible under the Fourth Amendment (X2 (1)= 109.323; p<.001). Although a plurality of 44.4% of respondents agreed with California v. Ciraolo420 that a warrant should not be necessary to conduct an aerial search from an altitude of 1,000 feet, nearly as many people, 40.6%, disagreed - producing a lack of a statistically significant finding with respect to this practice (X2(lj=0.771; p= n.s.). Moreover, when the height of the aerial observation is reduced to only 400 feet, a significant difference was found between the 32.5% of respondents who concurred with the holding in Florida v. Riley421 which upheld such a search and the 50.5% who disagreed with the outcome ofthat case (X^sup 2^^sub (1)^ m=l 7.099; p<.001).

d. Students' Territorial Privacy at School

Unlike the clear rejection of precedent upholding invasions of students' bodily privacy noted earlier, higher levels of agreement were found with cases which upheld invasions of students' territorial privacy. In fact, 62.5%o of respondents agreed with the holding in New Jersey v. T.L.O.422 that school officials should be permitted to search students' lockers for evidence of the possession of contraband without probable cause or a warrant, while only 21.7% disagreed (X2 (1)=82.836; p<.001). However, when the search involves a purse or a backpack, support dropped 20 percentage points while opposition nearly doubled percentage points, rendering the difference between those agreeing and disagreeing with the case statistically insignificant (X^sup 2^^sub (1)^=0.142;p= n.s.).

3. Information and Communication Privacy

As Table 7 demonstrates,423 respondents overwhelmingly expressed agreement with precedent limiting invasions of communications privacy. For example, consistent with the holding in Katz v. United States424 and the requirements of Title III of the Omnibus Crime Control and Safe Streets Act,425 63.1% of respondents agreed that a warrant is required to record a phone conversation, even on a public telephone, compared to only 23.1% who disagreed (X^sup 2^^sub (1)^=78.962; p<.001). The level of agreement rose to 91.7% when the question was altered to involve a person's private cell phone, rather than a public phone, while the level of disagreement plummeted to only 7.1% (X^sup 2^^sub (1)^= 272.399; p<.001). Conversely, respondents disagreed with a key piece of precedent which upheld an intrusion of communications privacy. By a nearly three-to-one margin, 57.4% of the respondents disagreed with the Supreme Court of Iowa's decision in State v. Canaf26 which upheld the child pornography conviction of a teenager who had "sexted" a nude image of himself to a teenage girl (X^sup 2^^sub (1)^=1 33.067; p<.001).

Consistent with bodily and territorial privacy, significant disagreement was found between survey respondents' views concerning reasonable expectations of both information privacy and precedent which upheld invasions into that realm, with one notable exception. A whopping 85.4% of respondents expressed disagreement with the Supreme Court's decision in United States v. Miller421 that bank customers have no reasonable expectation of privacy in their banking transactions for Fourth Amendment purposes; a mere 5.5% of respondents agreed that law enforcement officials should be able to obtain bank records without a judicially-authorized warrant (X^sup 2^^sub (1)^=293.568; p<.001).

A similarly high level of disagreement, 85.5%, was found with the decision in United States v. Knotts42% which upheld the warrantless installation of a tracking beeper for the purposes of tracking a vehicle; only 7.1% of respondents agreed with the Court's reasoning that the electronic monitoring of a car's whereabouts did not constitute a "search" for Fourth Amendment purposes since no reasonable expectation of privacy was violated (X^sup 2^^sub (1)^=324.793;p<.001).

Finally, by a nearly three-to-one margin, 61.1% of respondents disagreed with the Ninth Circuit's decision in United States v. Arnold*29 upholding random searches of computer hard drives at international borders. It is notable that only 22.5% of respondents agreed with the permissible scope of such searches even when they were being performed to search for evidence of child pornography (X^sub 2^^sub (1)^=87 .337; p<.001).

The only informational privacy question on our survey which generated high levels of agreement with precedent that had not protected informational privacy concerned abandoned property. More than half of respondents agreed with the U.S. Supreme Court's decision in California v. Greenwood430 insofar as a person relinquishes his or her reasonable expectation of privacy in the information in garbage when it is placed on the curb where anyone, including police, could search through it (X^sup 2^^sub (1)^=44.765; p<.001). Interestingly, though, when the facts of Greenwood were changed, so did opinions regarding what the police should be able to do. Anticipating agreement with Greenwood, we also asked people to indicate their level of agreement with the following question:

Assume, for this question only, that John put his trash bags next to his front door, rather than out on the curb. Under these circumstances, John would reasonably expect that only the trash collector would come up to his front door to take the trash bags; no one else should have the right to go through John's garbage.

Of the 454 respondents who answered this question, 292 (64.3%) agreed with it; 63 (13.9%) disagreed with it; and 99 (21.8%) neither agreed nor disagreed (X^sup 2^^sup (2)^ = 200.410, p<.001). This suggests that it is not the nature of the property at issue, namely the information that might be gleaned by going through someone's garbage, but rather the interplay between the abandonment of trash and its proximity to one's home, raising issues of territorial privacy as well.

B. Variables Predicting Views on Reasonable Expectations of Privacy

1. Multivariate Results

As Table 8 illustrates,431 all four multivariate linear regression models reached statistical significance with p-values of less than .01, one of which reached significance with a p-value of less than .001. The two variables that had the strongest impact on expectations of privacy across the different privacy domains were political affiliation and educational level. In addition, religion achieved significance in predicting support for bodily privacy, and whether someone had taken a course in criminal procedure achieved significance in predicting support for information privacy.

In spite of the statistical significance of the variables discussed in this section, it should be noted at the outset that, as the relatively low Rsquared values reported in Table 8 indicate, the models explained only between 4.0% and 7.7% of the variance. Thus, many other factors beyond the demographic and attitudinal variables examined in the present study contribute to the complex belief system governing determinations of what constitutes a reasonable expectation of privacy.

a. Political Party Affiliation

Republicans express lower levels of support for the protection of privacy than Democrats, and significantly lower levels of support for territorial and communications privacy. Specifically, Republicans scored approximately three points lower on the territorial privacy scale and four points lower on the communications scale than Democrats. Although Democrats and liberals are commonly aligned with the so-called "right to privacy" embodied in substantive due process while Republicans and conservatives are generally hostile to such a conceptualization of privacy, neither territorial nor communications privacy are implicated by the substantive due process approach to privacy.432 Accordingly, most of the literature on privacy does not offer any insights that might explain this finding. Perhaps lower expectations of privacy are directly related to the Republican political agenda to get tough on crime, which was first conceived by the Nixon administration to "appeal to voters who resent[ed] minorities."433 The political agenda to get tough on crime eventually instilled itself in the Republican party and, as a result, numerous studies have found that Republican political strength is associated with harsher criminal punishment.434 It is possible, then, that Republicans may express lower expectations of territorial and communications privacy because they believe that only the guilty have something to hide. But this conclusion is somewhat speculative; further empirical research is necessary to investigate why Republicans express significantly lower levels of support for territorial and communications privacy.

b. Educational Level

Individuals who had higher levels of education reported less support for privacy protections than individuals who had only a high school diploma (or equivalent) in the domains of bodily and territorial privacy. However, individuals who had a bachelor's degree or higher reported stronger support for privacy protections than individuals with only the equivalent of a high school education in the areas of information and communications privacy. Specifically, individuals with bachelor's degrees scored nearly seven points higher on the communications privacy scale than individuals with only the equivalent of a high school diploma.

Although the literature does not offer an explanation for the role educational achievement plays in formulating beliefs across the various privacy domains, three factors may be partially responsible for this finding. First, individuals with only a high school level of education tend to be younger and, as research suggests, younger individuals come into contact with the law more often because they commit more crime, which, in turn, adversely affects their perception of the police.435 Second, because "younger individuals value their freedom," they may express higher expectations of privacy as a way to limit the amount of negative contact with law enforcement.436 Third, individuals with a bachelor's degree or higher may express lower expectations of privacy because they generally perceive low levels of police misconduct. 7 Accordingly, individuals may place more trust in police as their educational level increases and, therefore, have fewer objections to law enforcement encroachments into various privacy domains.

c. Religion

Individuals who self-identified as being either agnostic or atheist reported higher levels of support for the protection of bodily privacy than respondents who identified as being affiliated with a major organized religion. Because Catholics expressed the lowest levels of support for bodily privacy protections, they were used as the reference group. Protestant Christians scored 2.24 points higher than Catholics on the bodily privacy scale, while agnostic/atheists scored 5.27 points higher on the scale than Catholics, the latter difference being statistically significant. Further research is necessary to explain this finding.

d. Knowledge of Criminal Procedure

Survey respondents who had taken a course in constitutional criminal procedure were significantly less likely than those who had never studied the subject matter to be supportive of informational privacy. Presumably, this is because students of criminal procedure likely had acquired a nuanced understanding of the law of search and seizure as it applies to issues such as tracking beepers, bank records, and border searches, and that knowledge may have affected their views concerning informational privacy. Yet, having taken a criminal procedure course did not have a similar effect on the three other privacy domains. Although future research should investigate this finding, we speculate that since the Fourth Amendment provides significant levels of protection to bodily, territorial, and communications privacy, the comparably low levels of protection for informational privacy under the Fourth Amendment may have affected their opinions as expressed on the survey.

2. Hypotheses

Hi. Because the Judeo-Christian and Islamic traditions embrace a variety of notions of privacy,438 we expected that religion would not be significantly associated with any of the dependent variables. Hi was largely supported, as there were no statistically significant differences between religious affiliation and any of the four privacy domains as predicted. A lack of any religious affiliation vis-à-vis self-identification as either an atheist or an agnostic, however, did reach statistical significance (b=5.27, SE=2.03,p<0.05).

H2. Based on the leading anthropological studies of privacy,439 we expected that race/ethnicity would be significantly related to opinions on reasonable expectations of privacy. Specifically, we hypothesized that people hailing from noncontact cultures would be more likely to disagree with precedent authorizing warrantless invasions of bodily, territorial privacy, and information privacy than people from close-contact cultures. H2 was not supported by the data, as no statistically significant differences were found on the basis of race or ethnicity in either bivariate or multivariate regression models. This finding might be due to the lack of information in the data about participants' current level of cultural identification. Respondents from ethnic minority backgrounds may have already become well-assimilated into contemporary American culture; therefore, they may not be truly representative of their culture of origin.

H3 and H4. Based on the leading social-psychological studies of privacy,440 we expected that men's psychological needs for higher levels of bodily and territorial privacy would make them more likely to disagree with precedent authorizing warrantless invasions of bodily and territorial privacy than women; and that women's greater desire for informational privacy would make them more likely to disagree with precedent authorizing warrantless invasions of informational or communications privacy than men. Neither H3 nor H4 was supported by the data, as no statistically significant differences were found on the basis of sex in either bivariate or multivariate regression models.

VIII. Conclusion

The U.S. Supreme Court's ruling in Katz v. United States4 ' set forth a privacy-based framework for determining the reach of the Fourth Amendment. The Court held that the Fourth Amendment only protects people when an actual, subjective expectation of privacy is one "that society is prepared to recognize as 'reasonable.'"442 But determining societal views regarding that which constitutes a reasonable expectation of privacy is no easy task. The judiciary - a non-majoritarian institution neither popularly chosen nor expected to express or implement the will of the people - makes such determinations on a case-by-case basis without the benefit of empirical research which would lend insight into the actual views of society. As Slobogin and Schumacher's groundbreaking study concluded, judicial "conclusions about the scope of the Fourth Amendment are often not in tune with commonly held attitudes about police investigative techniques."443 The data gathered and analyzed in the present study reinforce the finding that judges often fail to appreciate the degree to which "society" believes privacy should be protected from law enforcement intrusions.

Survey respondents in this study expressed significant levels of agreement with precedent protecting privacy rights under the Fourth Amendment.444 Conversely, participants expressed significant levels of disagreement with case law upholding various types of invasions of privacy across the four privacy domains.445 In fact, the only areas in which the research sample agreed with decisions limiting the applicability of Fourth Amendment privacy protections concerned abandoned property,446 special needs searches for health and safety reasons,447 and the applicability of the plain view doctrine to contraband visible during a protective sweep.448 Collectively, the results indicate that courts often misjudge what "society" is prepared to embrace as a reasonable expectation of privacy. This finding replicates those from Slobogin and Schumacher's study insofar as they concluded that "because of their distance from the world of police investigation and the effect of hindsight bias," judges "tend to underestimate the intrusiveness of police actions, at least if community values remain the linchpin of search and seizure jurisprudence."449 Indeed, the judiciary appears to be much more willing to allow invasions of privacy across all four privacy domains than members of the general public.

The results of this study have significant policy implications because the Fourth Amendment serves significant social objectives beyond establishing the scope of evidence admissibility in a court of law. Slobogin and Schumacher illustrated this point at the end of the article by quoting Professor Monrad Paulsen:

The basic . . . problem of a free society is the problem of controlling the public monopoly of force. All the other freedoms, freedom of speech, of assembly, of religion, of political action, presuppose that arbitrary and capricious police action has been restrained. Security in one's home and person is the fundamental without which there can be no liberty.450

In light of the fundamental importance of the various dimensions of privacy in our constitutional democracy, Katz embraced a framework in which societal values regarding the intrusiveness of police actions are supposed to "heavily influence, if not dictate" the scope of constitutional privacy protections. But the "quasi-scientific, objective nature of legal analysis"452 does not provide a particularly accurate method of determining reasonable expectation of privacy for Fourth Amendment purposes within the framework of Katz. Accordingly, we join Slobogin and Schumacher in recommending that judges engage in the process of constitutional factfindings (i.e., using empirical research) rather than basing their decision on the "suppositions of thoughtful reflection"453 when deciding cases in which objective reasonability of a reasonable expectation of privacy is at issue. This, in turn, could provide for better alignment between Fourth Amendment jurisprudence and the actual, rather than supposed, beliefs regarding what "society is prepared to recognize as 'reasonable'" in the contexts of privacy invasions.454 But, as both Fradella455 and Slobogin and Schumacher456 have pointed out, given judicial hostility to empirical research in the context of adjudicating constitutional claims relevant to criminal law and procedure, it is most likely that the courts will either "reject or ignore the data."457 We therefore call upon judges to be more sensitive to the privacy and autonomy implications of their decisions in the Fourth Amendment context. Their assessments should "reflect realistic societal attitudes rather than their own."458 We hope that the data from this study, and hopefully others which seek to build on our research, will help judges do just that.

1 . Although this article is concerned with "reasonable expectations of privacy" under the Fourth Amendment to the U.S. Constitution, it should be noted that similar ambiguities exist in the law of other common law countries. For example, Section 8 of the Canadian Charter of Rights and Freedoms mirrors the language of the Fourth Amendment in its guarantee to Canadians "to be secure against unreasonable search and seizure . . . ." Yet, as in the United States, "there is no positive right to privacy protection in Canadaf;] this section of the Charter is generally viewed as protecting reasonable expectations of privacy. What does it mean, however, to have a reasonable expectation? There is little if any literature in law directly on this question." Jacquelyn Burkell, Deciding for Ourselves: Some Thoughts on the Psychology of Assessing Reasonable Expectations of Privacy, 50 CAN. J. CRIMINOLOGY & CRlM. JUST. 307, 308 (2008).

2. Richard A. Glenn, The Right to Privacy: Rights and Liberties under the Law (2003); Ellen alderman & Caroline Kennedy, The right to privacy (2d ed. 2008); Alan F. Westin, PRIVACY AND FREEDOM (1967); see, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); Ex reí. Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261 (1990); Carey v. Population Servs. Infi, 431 U.S. 678 (1977); Roe v. Wade, 410 U.S. 113 (1973); Stanley v. Georgia, 394 U.S. 557 (1969); Griswold v. Connecticut, 381 U.S. 479 (1965); Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).

3. 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

4. See, e.g., ALICE FLEETWOOD BARTEE, PRIVACY RIGHTS: CASES LOST AND CAUSES WON BEFORE THE SUPREME COURT (2006); BRANDON GARRETT, THE RIGHT TO PRIVACY (2001); Jamal Greene, The So-Called Right to Privacy, 43 U.C. DAVIS L. REV. 715 (2010).

5. See, e.g., Lawrence, 539 U.S. at 564-79 (Kennedy, J., writing for the majority), 579-85 (O'Connor, J., concurring), 586-605 (Scalia, J., dissenting); Roe, 410 U.S. at 116-67 (Blackmun, J., writing for the majority), 171-78 (Rehnquist, J., dissenting); Griswold, 381 U.S. at 480-86 (Douglas, J., writing for the majority), 486-99 (Goldberg, J., concurring), 507-27 (Black, J., dissenting), 527-31 (Stewart, J., dissenting).

6. Erwin Chemerinsky, Rediscovering Brandeis's Right to Privacy, 45 Brandeis L.J. 643, 645 (2007).

7. Griswold, 381 U.S. at 484.

8. Chermerinsky, supra note 6, at 646.

9. Id. at 649; see also Ken Gormley, One Hundred Years of Privacy, 1992 WIS. L. REV. 1335 (1992) (arguing that the law embraces five distinct concepts of privacy: the privacy of Warren and Brandeis (tort privacy), Fourth Amendment privacy, First Amendment privacy, fundamental-decision privacy, and state constitutional privacy).

10. See Part ?, infra.

11. Daniel J. Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477, 477-78 (2006).

12. U.S. CONST, amend. IV; see also Mary Helen Wimberly, Note, Rethinking the Substantive Due Process Right to Privacy: Grounding Privacy in the Fourth Amendment, 60 VAND. L. Rev. 283 (2007) (describing an approach to privacy rights based on the search and seizure provision of the Fourth Amendment).

13. Katz v. United States, 389 U.S. 347 (1967).

14. Id. at 351.

15. Id. at 361 Ovarian, J., concurring).

16. Chemerinsky, supra note 6, at 650.

17. Burkell, supra note 1 , at 308.

18. See, e.g., David Neubauer & Henry F. fradella, America's Courts and the Criminal Justice System (10th ed. 2011); Lief H. Carter & Thomas F. burke, Reason in Law (8th ed., Longman 2009); Davtd l. Faigman, Constitutional Fictions: A Unified Theory of Constitutional FACTS (2008); see also Chris Guthrie, Jeffrey J. Rachlinski, & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 1 (2007); David L. Faigman, "Normative Constitutional Fact-Finding": Exploring the Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541 (1991); Sheldon D. Pollack, Constitutional Interpretation as Political Choice, 48 U. PlTT. L. REV. 989 (1987).

19. THE POLITICS OF Law: A PROGRESSIVE CRITIQUE 1 (David Kairys ed., 1982); see also, ALEXANDER BlCKEL, THE Least Dangerous BRANCH 16-23 (1962) (explaining the countermajoritarian difficulty); Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV. 333, 343-56 (1998) (same); cf. Lindsay G. Robertson, Neutral Principles and Judicial Legitimacy, 54 OKLA. L. Rev. 53, 55-57 (2001) (advocating new constitutional jurisprudence).

20. Faigman, supra note 18, at 546.

21. Henry F. Fradella, A Content Analysis of Federal Judicial Views of the Social Science "Researcher's Black Arts," 35 RUTGERS L.J. 103, 105 (2003); see also James R. Acker, Social Science in Supreme Court Criminal Cases and Briefs: The Actual and Potential Contribution of Social Scientists as Amici Curiae, 14 LAW & HUM. BEHAV. 25 (1990); Richard Lempert, "Between Cup and Lip ": Social Science Influences on Law & Policy, 10 LAW & Pol'y 167, 187-91 (1988); John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. PA. L. REV. 477, 481 (1986); cf. Richard A. Leo & Jon B. Gould, Studying Wrongful Convictions: Learning from Social Science, 7 Ohio St. J. CRIM. L. 7 (2009); Angelo N. Ancheta, Science and Constitutional Fact Finding in Equal Protection Analysis, 69 OHIO ST. LJ. 1115 (2008).

22. See Patricia Brierley Newell, Perspectives on Privacy, 15 J. ENVTL. PSYCHOL. 87 (1995); see also, Stephen T. Margulis, Conceptions of Privacy: Current Status and Next Steps, 33 J. SOC. ISSUES 5 (1977); cf. Ellen R. Foxman & Paula Kilcoyne, Information Technology, Marketing Practice and Consumer Privacy: Ethical Issues, 12 J. PUB. POL'Y & MARKETING 106 (1993) (exploring aspects of informational privacy); Richard A. Wasserstrom, Privacy: Some Arguments and Assumptions, in PHILOSOPHICAL LAW 148-66 (Richard A. Bronaugh ed., 1978).

23. Thane Josef Messinger, A Gentle and Easy Death: From Ancient Greece to Beyond Cruzan Toward a Reasoned Legal Response to the Societal Dilemma of Euthanasia, 7 1 DENV. U. L. REV. 175, 231 n.458 (1993).

24. WESTIN, supra note 2, at 1 1.

25. See generally Stanley Arthur Cook, THE LAWS OF MOSES AND THE CODE OF HAMMURABI (1903).

26. Id. at 183; see also Robert C. Ellickson & Charles Dia Thorland, Ancient Land Law: Mesopotamia, Egypt, Israel, 71 Chi.-KeNT L. Rev. 321, 380 (1995).

27. Art. 21, Code of Hammurabi (1750-1700 B.C.E.) quoted in nelson B. Lasson, The History and Development of the fourth Amendment to the United States Constitution 1415n.5(1937).

28. COOK, supra note 25, at 214; Edwin M. Good, Capital Punishment and its Alternatives in Ancient Near Eastern Law, 1 9 STAN. L. REV. 947, 962-64 ( 1 967).

29. Robert J. McWhirter, Molasses and the Sticky Origins of the 4th Amendment, 43 ARIZ. ATT'Y 16, 18 (June 2007).

30. Barrington Moore, Jr., Privacy: Studies in Social and Cultural History 81 (1984).

31. Id. at 81-82.

32. Id.

33. Id. at 82.

34. Id. at 81-109.

35. Id. at 106.

36. Id. at 106-120; John Walter Jones, The law and legal theory of the Greeks: An INTRODUCTION 155-57 (1956).

37. Gormley, supra note 9, at 1435-36.

38. MOORE, supra note 30, at 120 (arguing that Plato and his contemporaries believed a worthwhile life included political action).

39. Id. at 123.

40. Amir Aaron Kakan, Evolution of American Law, from Its Roman Origin to the Present, 48 Orange County L. 3 1, 32 (Feb. 2006).

41. Id.

42. H. Edwin Anderson, III, Risk, Shipping, and Roman Law, 34 TUL. MAR. LJ. 183, 188 (2009).

43. Id. at 189.

44. See P.J. THOMAS, INTRODUCTION TO ROMAN LAW ( 1 986).

45. Anderson, supra note 42, at 192.

46. Kakan, supra note 40, at 34; H.F. JOLOWIEZ & BARRY NICHOLAS, HISTORICAL Introduction to the Study of Roman Law 259 (l 972).

47. THOMAS, supra note 44, at 36.

48. Cicero, Domo de sua 109; quoted in W. B. McDaniel, II, Cicero and His House on the Palatine, 23 The CLASSICAL J. 651, 660 (1928).

49. McDaniel, supra note 48, at 660.

50. Newell, supra note 22, at 88.

51. Id. at 89 (citing Osamu Iwata, Similarities and Dissimilarities in the Japanese Semantic Structure of Privacy and Its Associated Concepts, 3 1 PSYCHOLOGIA 1 98 ( 1 988)).

52. Id.

53. Alfred S. Cohen, Privacy: A Jewish Perspective, 1 J. HALACHA & CONTEMP. SOC'Y 53, 62 (i981).

54. Mat 54-55.

55. See Talmud, Bava Bathra 60a.

56. Id.

57. Cohen, supra note 53, at 62.

58. See Talmud, Bava Metzia 1 13.

59. See Talmud, Sanhédrin 31a.

60. Cohen, supra note 53, at 70-71.

61. See Muhammad Aslam Hayat, Privacy and Islam: From the Qur'an to Data Protection in Pakistan, 16INF0. & COMM. TECH. L. 137 (2007).

62. Qur'an, Al-Nur 27.

63. Qur'an, Al-Nur 28.

64 . Hayat, supra note 6 1 , at 1 4 1 .

65. Qur'an, Al-Hujurat 12.

66. Hayat, supra note 61, at 142.

67. Qur'an, Al-Nur 19.

68. Genesis 3:21.

69. Richard F. Hixson, privacy in a public Society: Human Rights in Conflict 17-18 (1987).

70. Rosa Ehrenreich, Privacy and Power, 89 GEO L.J. 2047, 2050-51 (2001) (quoting Milton R. Konvitz, Privacy and the Law: A Philosophical Prelude, 31 LAW & CONTEMP. PROBS. 272 (1966)).

71. Judges 21:25.

72. WESTIN, supra note 2, at 177.

73. Id.

74. Id. at 181.

75. Id. at 189.

76. Exodus 20:2-15.

77. Exodus 20:2-17.

78. WESTIN, supra note 2, at 174.

79. Exodus 20:2-14.

80. See Arnold N. Enker, Error Juris in Jewish Criminal Law, 1 1 J.L. & RELIGION 23, 42 (19941995).

81. 1 Corinthians! A.

82. It should be noted, however, that this passage has also been used to suppose sexist notions of wife as husband's property in ways that perpetuated laws which failed to punish marital rape. See Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CAL. L. REV. 1 373, 1397 n.68 (2000).

83. WESTIN, supra note 2, at 8; Peter H. Klopfer & Daniel I. Robenstesin, The Concept of Privacy and Its Biological Bases, 33 J. SOC. ISSUES 52 (1977).

84. Edward Hall, The Hidden Dimension 29 (1966).

85. see h. eliot howard, territory in bird life (1920).

86. WESTIN, supra note 2, at 9; see also, e.g., Tamara L. Hibler & Anne E. Houde, The Effect of Visual Obstructions on the Sexual Behaviour of Guppies: The Importance of Privacy, 72 ANIMAL BEHAV. 959 (2006) (reporting that sexual coupling among this breed of fish was increased in aquaria with barriers that allowed the guppies to mate in visually obstructed areas).

87. See, e.g., Benjamin M. Basile, Robert R. Hampton, Amjad M. Chaudhry, & Elizabeth A. Murray, Presence of a Privacy Divider Increases Proximity In Pair-housed Rhesus Monkeys, 16 Animal Welfare 37 (2007).

88. Compare Viktor Reinhardt & Annie Reinhardt, Impact of a Privacy Panel on the Behavior of Caged Female Rhesus Monkeys Living in Pairs, 34 J. EXPERIMENTAL ANIMAL SCI. 55 (1991), with Stephen T. Margulis, Privacy as a Social and Behavioral Concept, 59 J. SOC. ISSUES 243, 246 (2003) ("At the psychological level, privacy supports social interactions which, in rum, provides feedback on our competence to deal with the world which, in turn, affects our self-definition." (citing IRWIN Altman, The Environment and Social Behavior (1975)), and Westin, supra note 2, passim (concluding that privacy protects autonomy; supports healthy physiological functioning, especially by reducing stress and increasing coping mechanisms; and promotes relaxation, stable interpersonal relationships, and personal development).

89. Basile et al., supra note 87, at 37 (citing Anthony M. Coelho, K. Dee Carey, & Robert E. Shade, Assessing the Effects of Social-Environment on Blood-Pressure and Heart-Rates of Baboons, 23 AM. J. Primatology 257 (1991); Steven J. Schapiro, Mollie A. Bloomsmith, Leila M. Porter, & Scott A. Suarez, Enrichment Effects on Rhesus Monkeys Successively Housed Singly, In pairs, and In Groups, 48 Applied Animal Behav. Sci. 159 (1996)).

90. HALL, supra note 84, at 16-37.

91. John R. Gold, An Introduction to Behavioural Geography (1980); Henrik HoghOlesen, Human Spatial Behaviour: The Spacing of People, Objects, and Animals in Six Cross-Cultural Samples, 8 J. COGNITION & CULTURE 245 (2008).

92. WESTlN, supra note 2, at 9.

93. Edward Hall, The Silent Language (1959).

94. See Irwin Altman & martin M. Chemers, Culture and Environment 75-76 (l 980).

95. ttegh-Olesen, iwpranote91,at246.

96. Id. at 258; see also Jonathan L. Freedman, Crowding and behavior (1975).

97. H0gh-Olesen,iMpranote91,at268.

98. See generally Catherine M.J. Beaulieu, Intercultural Study of Personal Space: A Case Study, 34 J. Applied Soc. Psychol. 794 (2004).

99. Jon Lang, Creating Architectural theory: The Role of Behavioral Sciences in ENVIRONMENTAL DESIGN (1987); Naz Kaya & Margaret J. Weber, Territorial Behavior in Residence Halls: A Cross-Cultural Study, 35 ENV'T & BEHAV. 400 (2003).

100. Eric Sundstrom & Irwin Altman, Interpersonal Relationships and Personal Space: Research Review and Theoretical Model, 4 HUM. ECOLOGY 47 (1976); Alton J. DeLong, Territorial Stability and Hierarchical Formation, 4 SMALL GROUP BEHAV. 55 (1973); A.H. Esser, Interactional Hierarchy and Power Structure on a Psychiatric Ward: Ethological Studies of Dominance Behavior in a Total Institution, in Behavior STUDIES IN PSYCHIATRY 25-59 (Sidney John Hurt & Connie Hurt eds., 1970).

101. Barry Schwartz, The Social Psychology of Privacy, 73 AM. J. Soc. 741 (1968); PHYLLIS MCGlNLEY, PROVINCE OF THE HEART (1959).

102. Newell, supra note 22, at 93 (quoting McGinley, supra note 101).

103. See CAROLE SIMON WEINSTEIN & THOMAS G. DAVID, SPACES FOR CHILDREN: THE BUILT ENVIRONMENT AND CHILD DEVELOPMENT (1987).

104. Clare Cooper Marcus, Environmental Memories, in HUMAN BEHAVIOR AND ENVIRONMENT: Advances in Theory and Research 87, 93 (Irwin Altman & Setha M. Low eds., 1992); see also Roger A. Hart, Children's Experience of Place (l 979).

105. Dorothy K. Kagehiro, Ralph B. Taylor, & Alan T. Harland, Reasonable Expectation of Privacy and Third-Party Consent Searches, 15 LAW & HUM. BEHAV. 121, 131 (1991).

106. Margulis, supra note 88, at 247; see also Newell, supra note 22, at 96-97 (citing, inter alia, Shawn M. Burn, Loss of Control, Attributions, and Helplessness in the Homeless, 22 J. APPLIED SOC. PSYCHOL. 1161 (1992); Roger Ingham, Privacy and Psychology, in PRIVACY 35-58 (James Baldwin Young ed., 1978); William H. Ittelson, Harold M. Proshansky, & Leanne G. Rivlin, A Study of Bedroom Use on Two Psychiatric Wards, 21 HOSP. & COMMUNITY PSYCHIATRY 177 (1970)); Jeffrey Reiman, Privacy, Intimacy, and Personhood, 6 PHIL. & PUB. AFF. 26 (1976); Paul Paulus, Verne Cox et al., Some Effects of Crowding in a Prison Environment, 5 J. APPLIED SOC PSYCHOL. 86 (1975); Michael H. Heffron, The Naval Ship as an Urban Design Problem, 85 NAVAL ENGINEERS J. 49 (1973); ERVING GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE 97(1969); DANIEL GLASER, THE EFFECTIVENESS OF A PRISON AND PAROLE SYSTEM ( 1 964).

107. Carl Anderson Johnson, Privacy as Personal Control, in MAN-ENVIRONMENT INTERACTIONS: EVALUATIONS AND APPLICATIONS 83-100 (Stephen T Margulis eds., 1974).

108. Darhl M. Pedersen, Psychological Functions of Privacy, 17 J. ENVTL. PSYCHOL. 147, 147 (1997) (citing GLASER, supra note 106; Heffron, supra note 106).

109. Margulis, supra note 88, at 247-48.

110. Valerian J. Derlega, Barbara A. Winstead, Kathryn Greene, Julianne Serovich, & William N. Elwood, Perceived HIV-Related Stigmas and HIV Disclosure to Relationship Partners After Finding Out About the Seropositive Diagnosis, 7 J. HEALTH PSYCHOL. 415 (2002).

111. See, e.g., Mark R. Leary & Lisa Schreindorfer, The Stigmatization of HIV and AIDS: Rubbing Salt in the Wound, in HIV & SOCIAL Interaction 12-29 (Valerian J. Derlega & Anita P. Barbee eds., 1998).

112. Patricia Brierley Newell, A Cross-Cultural Comparison of Privacy Definitions and Functions: A Systems Approach, 18 J. Envtl. Psychol. 357 (1998); Paul B. Harris, Carol M. Werner, Barbara B. Brown, & Dave Ingebritsen, Relocation and Privacy Regulation: A Cross-Cultural Analysis, 15 J. ENVTL. PSYCHOL. 311 (1995); Peter Kelvin, A Socio-Psychological Examination of Privacy, 12 Brit. J. Soc. & Clinical Psychol. 248 (1973).

113. Maxine Wolfe & Robert Laufer, Privacy as a Concept and a Social Issue: A Multidimensional Developmental Theory, 33 J. SOC ISSUES 22 (1977).

114. Id. at 26-39.

115. See, e.g., Pedersen, supra note 1 08, passim; Nancy J. Marshall, Privacy and Environment, 1 Hum. ECOLOGY 93 (1972).

116. Darhl M. Pedersen, Dimensions of Privacy, 48 PERCEPTUAL & MOTOR SKILLS 1291 (1979); Ahmet Rusteml & Dogan Kokdemir, Privacy Dimensions and Preferences Among Turkish Students, 133 J. SOC. PSYCHOL. 807 (1993).

117. E.g., Margulis, supra note 22, at 8; Wolfe & Laufer, supra note 1 1 3 , at 23-26.

118. E.g., Marshall, supra note 115, at 108-10.

119. E.g., Kelvin, supra note 1 12, at 249-50.

120. See, e.g. , ALTMAN, supra note 88, passim; ALTMAN & CHEMERS, supra note 94, passim.

121. ALTMAN, supra note 88, passim.

122. Dorothy Lee, Freedom and Culture 1-3(1959).

123. Id. at 75.

124. Id. at 31.

125. Id. at 75.

126. Margaret Mead, Coming of age in Samoa ( 1 928).

127. e.g. , livingston french jones, a study of the thlingets of alaska (1914).

128. See, e.g., Ying-Keung Chan, Privacy in the Family: Its Hierarchical and Asymmetric Nature, 31 J. COMP. FAM. STUD. 1 (2000) (emphasis in original); Jeffry H. Larson & Nilufer Medora, Privacy Preferences: A Cross-Cultural Comparison of Americans and Asian Indians, 22 INT'L J. SOC. FAMILY 55 (1992); Newell, supra note 1 12, at 364.

129. Bardia Monshi & Verena Zieglmayer, The Problem of Privacy in Transcultural Research: Reflections on an Ethnographic Study in Sri Lanka, 14 ETHICS & BEHAV. 305, 309-10 (2004).

130. Id. at 3 10. Similar attitudes toward privacy have been documented in Turkey. See Rustemli & Kokdemir, supra note 1 16, at 813; Ahmet Rustemli, Crowding Effects of Density and Interpersonal Distance, 132 J. SOC. PSYCHOL. 51 (1992).

131. Naz Kaya & Margaret J. Weber, Cross-Cultural Differences in the Perception of Crowding and Privacy Regulation: American and Turkish Students, 23 J. ENVTL. PSYCHOL. 301 (2003); Egbe E. ldehen, The Influence of Gender and Space Sharing History on the Conceptions of Privacy by Undergraduates, 5 IFE PSYCHOLOGIA 59 (1997).

132. Pauline Garvey, Domestic Boundaries: Privacy, Visibility, and the Norwegian Window, 10 J. Material Culture 157 (2005).

133. X. Zheng & John W. Berry, Psychological Adaptation of Chinese Sojourners in Canada, 26 int'l J. Psychol. 451 (1991).

134. Beaulieu, supra note 98, at 796; Kaya & Weber, supra note 1 3 1 , at 307.

135. HALL, supra note 84, at 12; ALTMAN & CHEMERS, supra note 94, at 1 14-15.

136. Hegh-Olesen, supra note 91, at 268; see also Beaulieu, supra note 98, at 796; Kaya & Weber, supra note 131, at 308.

137. FREEDMAN, supra note 96, at 72.

138. John R. Aiello, Human Spatial Behavior, in HANDBOOK OF ENVIRONMENTAL PSYCHOLOGY 389-504 (Daniel Stokols & Irwin Altman eds., 1987); John R. Aiello & Donna E. Thompson, Personal Space, Crowding, and Spatial Behavior in a Cultural Context, in 4 HUMAN BEHAVIOR AND ENVIRONMENT: ADVANCES IN THEORY AND RESEARCH; ENVIRONMENT AND CULTURE 107-178 (Irwin Altman, Amos Rapoport, & Joachim F. Wohlwill eds., 1980).

139. Bcaulieu, supra note 98, at 801-803; see also Nan M. Sussman & Howard M. Rosenfeld, Influence of Culture, Language, and Sex on Conversational Distance, 42 J. PERSONALITY & SOC. PSYCHOL. 66 (1982) (finding that Japanese dyads sat further apart than both U.S. Americans and Venezuelans).

140. See, e.g., FREEDMAN, supra note 96; Maxine Wolfe, Room Size, Group Size, and Density: Behavior Patterns in a Children's Psychiatric Facility, 7 ENV'T & BEHAV. 199 (1975); Daniel Stokols, On the Distinction Between Density and Crowding: Some Implications for Future Research, 79 PSYCHOL. REV. 275 (1972).

141. Bcaulieu, supra note 98, at 795 (citing Freedman, supra note 96).

142. Hegh-Olesen, supra note 91, at 246 (citing HALL, supra note 84; Dale O. Jorgenson, Field Study of the Relationship Between Status Discrepancy and Proxemic Behavior, 97 J. SOC. PSYCHOL. 73 (1975); Marshall P. Duke & Stephen Nowicki, Jr., A New Measure and Social-Learning Model for Interpersonal Distance, 6 J. EXPERIMENTAL Res. in PERSONALITY 119 (1972)).

143. Beaulieu, supra note 98, at 795 (citing, inter alia, FREEDMAN, supra note 96; HALL, supra note 93).

144. Gary W. Evans, Stephen J. Lepore, & Karen Mata Allen, Cross-Cultural Differences in Tolerance for Crowding: Fact of Fiction?, 79 J. PERSONALITY & SOC PSYCHOL. 204, 208 (2000).

145. Id. at 208.

146. Id.

147. Id. at 209.

148. H0gh-Olesen, supra note 91, at 246 (citing Aiello, supra note 138; J. Wesley Burgess, Developmental Trends in Proxemic Spacing Behavior Between Surrounding Companions and Strangers in Casual Groups, 7 J. NONVERBAL BEHAV. 158 (1983); Ana M. Fry & Frank N. Willis, Invasion of Personal Space as a Function of Age of the Invader, 2 1 PSYCHOL. REC. 385 ( 1 97 1 )).

149. Julian J. Edney & Nancy L. Jordan-Edney, Territorial Spacing on a Beach, 37 SOCIOMETRY 92, 97-98 (1974); Lynn Renec Cohen, Nonverbal (Mis)communication Between Managerial Men and Women, 26 BUS. HORIZONS 13, 15 (1983).

150. Beaulieu, supra note 98, at 795-96 (citing John R. Aiello & Stanley E. Jones, Field Study of the Proxemic Behavior of Young School Children in Three Subcultural Groups, 19 J. PERSONALITY & SOC. PSYCHOL. 351 (1971); Gary W. Evans & Roger B. Howard, Personal Space, 80 PSYCHOL. Bull. 334 (1973); Albert Mehrabian & Shirley G. Diamond, Seating Arrangement and Conversation, 34 SOCIOMETRY 281 (1971); James C. Baxter, Interpersonal Spacing in Natural Settings, 33 SOCIOMETRY 444 (1970); Mark Cook, Experiments on Orientation and Proxemics, 23 Hum. RELATIONS 61 (1970)).

151. Kaya & Weber, supra note 99, at 411.

152. ttegh-Olesen, supra note 9\, at 246 (citing Marsha Kaitz, Yair Bar-Haim, Mclcssa Lehrer, & Ephraim Grossman, Adult Attachment Style and Interpersonal Distance, 6 ATTACHMENT & HUM. DEV. 285 (2004); Aiello, supra note 138; Donald Karl Fromme & Donna Clcgg Beam, Dominance and Sex Differences in Nonverbal Responses to Differential Eye Contact, 8 J. RES. IN PERSONALITY 76 (1974); Robert Sommer, Personal Space - The Behavioural Bases of Design (1 969)).

153. Gaurav Bansal, Fatcmch "Mariam" Zahcdi, & David Gcfcn, The Impact of Personal Dispositions on Information Sensitivity, Privacy Concern and Trust in Disclosing Health Information Online, 49 DECISION SUPPORT SYS. 138, 138 (2010) (quoting WESTIN, supra note 2, at 7).

154. Jisuk Woo & Jac-Hyup Lee, The Limitations of "Information Privacy" in the Network Environment, 7 U. PlTT. J. TECH. L. & POL'Y 3, 5 (2006).

155. RESTATEMENT (SECOND) OF TORTS § 652B ( 1 977).

156. Id. at§652D.

157. See Neil M. Richards, The information Privacy Law Project, 94 GEO. L.J. 1087, 1089 (2006).

158. Robert Sprague & Corey Ciocchetti, Preserving Identities: Protecting Personal Identifying Information Through Enhanced Privacy Policies and Laws, 19 ALB. L.J. SCI. & TECH. 91, 95 (2009); Corey A. Ciocchetti, E-Commerce and Information Privacy: Privacy Policies as Personal Information Protectors, 44 AM. BUS. L.J. 55, 56 (2007); James P. Nchf, Shopping for Privacy Online: Consumer Decision-Making Strategies and the Emerging Market for Information Privacy, 2005 U. ILL. J. L. TECH. & POL'Y 1 , 1 (2005); Kim Battel Shcchan & Marica Grubbs Hoy, Dimensions of Privacy Concern Among Online Consumers, 19 J. PUB. POL'Y & MARKETING 62, 63 (2000). For a comparative analysis of such challenges outside of the United States, see Kanchana Kariyawasam, Legal Issues and Challenges in Online Shopping: A Comparative Analysis of Australia and New Zealand, 15 N.Z. BUS. L. Q. 176(2009).

159. See, e.g., Sean C. Honcywill, Data Security and Data Breach Notification for Financial Institutions, 10 N.C. Banking Inst. 269, 271 (2006); Vincent R. Johnson, Cybersecurity, Identity Theft, and the Limits of Tort Liability, 57 S.C. L. REV. 255, 256 (2005).

160. Bansal et al., supra note 153, at 138; see also Deven McGraw, Privacy and Health Information Technology, 37 J.L. MED. & ETHICS 123 (2009).

161. Justine Rapp, Ronald Paul Hill, Jeannie Gaines & R. Mark Wilson, Advertising and Consumer Privacy: Old Practices and New Challenges, 38 J. ADVERTISING 51,51 (2009).

162. Nehf, supra note 1 58, at 1.

163. Id. at 1-2 ("Market pressures encourage many businesses to at least appear sensitive to customers' privacy concerns. Most businesses would like to avoid the perception or implication that they harvest and sell the personal data they obtain either openly or surreptitiously from their customers. Indeed, business consulting firms now routinely encourage the adoption and promotion of privacy policies as a way to present a positive client image. Appearing concerned about customer privacy has become a standard marketing strategy." Id. at 1-2).

164. Rapp et al., supra note 161, at 51-52.

165. Nehf, supra note 158, at 18-19 (citing Joseph Phelps, Glenn Nowak & Elizabeth Ferrell, Privacy Concerns and Consumer Willingness to Provide Personal Information, 19 J. PUB. POL'Y & MARKETING 27 (2000); Nadia Olivero & Peter Lunt, Privacy Versus Willingness to Disclose in Ecommerce Exchanges: The Effect of Risk Awareness on the Relative Role of Trust and Control, 25 J. ECON. PSYCHOL. 243 (2004); Sheehan & Hoy, supra note 158)).

166. Id. at 15-16 (citing Sheehan & Hoy, supra note 158, at 63; Joseph Phelps, Glenn Nowak, & Elizabeth Ferrell, Privacy Concerns and Consumer Willingness to Provide Personal Information, 19 J. PUB. POL'Y & MARKETING 27, 33 (2000); Eve M. Caudill & Patrick E. Murphy, Consumer Online Privacy: Legal and Ethical Issues, 1 9 J. PUB. POL'Y & MARKETING 7, 7 (2000); Frank V. Céspedes & H. Jeff Smith, Database Marketing: New Rules for Policy and Practice, SLOAN MGMT. REV. (Summer 1993), at 10).

167. Id. at 16-17 (citing Sheehan & Hoy, supra note 158, at 63, 64, 68; Robert McKim, Information: The Newest Currency, TARGET MARKETING (Jul. 1999), at 36, 39; Olivero & Lunt, supra note 165, at 245, 257; Caudill & Murphy, supra note 166, at 8).

168. Colin P. McCarthy, Paging Dr. Google: Personal Health Records and Patient Privacy, 51 WM. & MARY L. REV. 2243, 2245 (2010).

169. Id. at 2254 (citing William H. Roach et al., medical Records and the Law 32 (4th ed. 2006)).

170. Pub. L. No. 104-191, 110 Stat. 1936 (codified in scattered sections of 29 U.S.C, and 42 U.S.C. (2006)); see also 45 C.F.R. § 144, 146, 160, 162, 164 (2008).

171. Bansal et al., supra note 153, at 145.

172. Id.

173. Id. at 144.

174. See McCarthy, supra note 168, passim.

175. Id.; see also Jenna Caldarella, Privacy and Security of Personal Health Records Maintained by Online Health Services, 20 ALB. L.J. Sci. & TECH. 203, 204 (2010).

176. Pub. L. 111-5, 123 Stat 115.

177. Kathleen M. McCauley & Kristi L. VanderLaan, Health Care Law, 44 U. RlCH. L. REV. 473, 479 (2009).

178. See, e.g., Deven McGraw, Privacy Law Showdown? Legal and Policy Analysis: Modifications to HIPPA Privacy Laws: Impact on Microsoft Health Vault, Google Health, and Other PHRs (2009) http://e-caremanagement.com/privacy-law-showdown-legal-and-policy-analysis/. (last visited May 30, 201 1) ("There has been considerable discussion lately about whether or not the stimulus legislation (ARRA) extends HIPAA coverage to commercial vendors of personal health records (PHRs) any time they contract with entities already covered by HIPAA like hospitals, health plans or physicians groups.").

179. See Patient Protection and Affordable Care Act of 2010, Pub. L. 111-148, 124 Stat 119 (Mar. 23, 2010); Health Care and Education Reconciliation Act of 2010, Pub. L. 1 1 1-152, 124 Stat 1029 (Mar. 30, 2010).

180. See, e.g., 18U.S.C. § 1341, 1701, 1702.

181. Anuj C. Desai, Can the President Read Your Mail? A Legal Analysis, 59 CATH. U. L. REV. 315, 344-45 (2010) (citing Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 STAN. L. REV. 553, 575-76 (2007); DAVID J. SEIPP, THE RIGHT TO PRIVACY IN AMERICAN HISTORY 33-35, 54 (1981)).

182. See, e.g., Katz v. United States, 389 U.S. 347, 353 (1969) (holding "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment."); Title ?? of the Omnibus Crime and Safe Streets Act of 1968, 18 U.S.C. § 2510-2522 (1994); The Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2511(1)(a) (1994).

183. See generally John Soma, Melodi Mosley Gates, & Michael Smith, Bit-Wise but Privacy Foolish: Smarter ?-Messaging Technologies Call for a Return to Core Privacy Principles, 20 ALB. L.J. SCI. & TECH. 487 (2010) (arguing for a more consistent privacy policy in the advent of ever evolving communication technology).

184. See Walter Pincus, No Expectation of Privacy: Disclosure of Electronic Communication and the First Amendment, 6 GREEN BAG 2D 265 (2003); cf. Edwards v. Bardwell, 632 F. Supp. 584 (M.D. La. 1986), off d without published opinion, 808 F.2d 54 (5th Cir. 1986) (ruling that because they can be overheard by anyone with a scanner, there is no reasonable expectation of privacy in conversations conducted using cordless phones); See generally Privacy Rights Clearinghouse, Fact Sheet 2: Wireless Communications: Voice and Data Privacy (2010), http://www.privacyrights.org/fs/fs2-wire.htm (last visted October 11, 2011).

185. See, e.g., Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence, 50 SANTA CLARA L. REV. 183 (2010); Nancy J. King, When Mobile Phones are RFID-Equipped- Finding E.U.-U.S. Solutions to Protect Consumer Privacy and Facilitate Mobile Commerce, 15 MlCH. TELECOMM. & TECH. L. Rev. 107 (2008); Derek D. Wood, The Emergence of Cellular and Cordless Telephones and the Resulting Effect on the Tension Between Privacy and Wiretapping, 33 GONZ. L. REV. 377 (1997-1998); cf. Henry F. Fradella & Marcus A. Galeste, Sexting: The Misguided Penal Social Control of Teenage Sexual Behavior in the Digital Age, 48 CRIM. L. BULL. Art. 4 (201 1) (documenting how "sexting" using cell phones, instant messages, and email threaten privacy); Clay Calvert, Sex, Cell Phones, Privacy, and the First Amendment: When Children Become Child Pornographers and the Lolita Effect Undermines the Law, 18 COMMLAW CONSPECTUS 1 (2009) (same).

186. See Electronic Communications Privacy Act (ECPA) of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (codified as amended in scattered sections of 18 U.S.C.); see also Monique Manhal-Baugus, Etherapy: Practical, Ethical, and Legal Issues, 4 CYBER PSYCHOL. & BEHAV. 551 (2001) (noting privacy concerns in ?-therapy, the practice of a licensed therapist using e-mail to communicate with clients).

187. See City of Ontario, CaI. v. Quon, 130 S. Ct. 2619, 2628, 2630 (2010) (noting that, although "individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer, . . . special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable for government employers" who monitor the pages and/or text messages of their employees for "non-investigatory work-related purposes.").

188. See, e.g., Mark Burdon, Privacy Invasive Geo-Mashups: Privacy 2.0 and the Limits of First Generation Information Privacy Laws, 2010 U. ILL. J.L. TECH. & POL'Y 1 (2010); Bernhard Debatin, Jennette P. Lovejoy, Ann-Kathrin Horn, & Brittany N. Hughes, Facebook and Online Privacy: Attitudes, Behaviors, and Unintended Consequences, 15 J. COMPUTER-MEDIATED COMM. 83 (2009).

189. Brian Kane, Balancing Anonymity, Popularity, & Micro-Celebrity: The Crossroads of Social Networking & Privacy, 20 ALB. L.J. SCI. & TECH. 327, 333-338 (2010); James Grimmelmann, Saving Facebook, 94 IOWA L. REV. 1 137, 1 144-45 (2009).

190. Grimmelmann, supra note 189, at 1160-175, 1195.

191. Alessandro Acquisti & Ralph Gross, Imagined Communities: Awareness, Information Sharing, and Privacy on the Facebook, in PRIVACY ENHANCING TECHNOLOGIES 36-56 (2006), available at http://www.heinz.cmu.edu/-acquisti/papers/acquisti-gross-facebook-privacy-PET-final.pdf (last visited May 30, 2011).

192. Harvey Jones & José Hiram Soltren, Facebook: Threats to Privacy 20-21 (Dec. 14, 2005), http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.112.3154&rep=rep1&type=pdf.

193. Ralph Gross & Alessandro Acquisti, Information Revelation and Privacy in Online Social Networks, 2005 ACM WORKSHOP ON PRIVACY IN THE ELECTRONIC SOC'Y 71, 77-78, available at http://delivery.acm.Org/10.l 145/1 1 10000/1 102214/p71gross.pdf?key 1 =1 1 022 1 4&key2= 1 39235792 1 &coll=DL&dl=ACM&CFID=8665972&CFTOKEN=74 1 16766.

194. Joshua Fogel & Elham Nehmad, Internet Social Network Communities: Risk Taking, Trust, and Privacy Concerns, 25 COMPUTERS IN HUM. BEHAV. 153, 159-60 (2009); see also Zeynep Tufekci, Can You See Me Now? Audience and Disclosure Regulation in Online Social Network Sites, 28 BULL. SCL, TECH., & SOC'Y. 20, 27 (2008).

195. Eric Gilbert, Karrie Karahalios, & Christian Sandvig, 77ie Network in the Garden: An Empirical Analysis of Social Media in Rural Life, 2 CHI PROC. 1603, 1609 (2008), available at http://delivery.acm.org/10.1145/1360000/13573O4/pl603gilbert.pdf?keyl=1357304&key2=7926357921&coll=DL&dl=ACM&CFID=867082.

196. John Grier Hibben, the Philosophy of the Enlightenment 3(1910).

197. See Suzanna Sherry, The Sleep of Reason, 84 GEO. L.J. 453, 455 (1996).

198. Id.

What distinguishes reason from alternative epistemologies is its general reliance on basic logic and the evidence of the senses (augmented by scientific discoveries). Certain types of questions are always in order in response to a reasoned argument: "Doesn't that contradict what you said earlier?"; "Is that consistent with the evidence?"; and "If that's true, wouldn't it follow that ... ?" Other responses are always out of order: "This must be true (or false) because the ultimate source of authority (God, the Bible, or some other source) says so"; and "I have faith that this is true regardless of its internal contradictions or its inconsistency with the evidence."

In some ways, it is easier to describe what reason is by explaining what it is not. To be reasonable, an argument need not depend solely on deductive reasoning, but it cannot be illogical. It need not be entirely provable by scientific experiment, but it cannot be inconsistent with everything science and the social sciences know about reality- until and unless that reality is experimentally proven wrong. Reasoned appeals need not be fully successful, but if they convince no one except those who are already believers, they are probably flawed. Nor are common human emotions entirely excluded. But neither appeals to power nor "strategic arguments designed to persuade [primarily] by their emotional effect on the listener" are consistent with reasoned argument. Reason also stands on its own: neither the identity of the speaker nor her institutional role should be relevant to the persuasiveness of an argument.

Id. at 455-56 (internal citations omitted).

199. HlBBEN, supra note 1 96, at 4.

200. See Sherry, supra note 197, at 465-72. This is not to say, however, that the Enlightenment does not have critics. Indeed, the Enlightenment is assailed by religious and critical post-modern scholars as having mistaken "a particular white male epistemology for a general truth." Id. at 458. These critics charge that "reason does not exist apart from its social and political hegemony. In other words, ... the Enlightenment was a fraud: it merely replaced one socially constructed view of reality with another, mistaking power for knowledge." Id. at 457. Moreover, critical theorists argue that "reason" and its near-obsessive reliance on "nature" justified racism, slavery, the subjugation of women and sexual minorities, and the perpetuation of a caste system of socio-economic class in which the "haves" always triumph over the "have nots." See generally Richard Delgado & JEAN STEFANCIC, Critical Race Theory: An Introduction (2001).

201. Roy Porter, The Enlightenment 9 (2d ed. 2001).

202. Isaac Newton, Newton's Principia, the Mathematical principles of Natural PHILOSOPHY (Andrew Motte trans., Daniel Adee 1846) (1687), available at http://www.archive.org/details/newtonspmathemaOOnewtrich.

203. Rene Descartes, Discourse on Method and méditions on first Philosophy 6 (Donald A. Cress trans., Hackett Publ'g. Co. 4th ed. 1998) (1637) (asserting the importance of "learning to distinguish the true from the false").

204. JOHN MILTON, Areopagitica (Chicago Encyclopedia Britannica 1955) (1644) (protesting censorship), available at http://econlib.org/library/Essays/miltAl. html.

205. THOMAS Hobbes, Leviathan (Oxford, Oxford University Press 1998) (1651) (laying the groundwork for social contract theory by arguing that liberty and autonomy are natural rights), available at http://www.constitution.org/th/leviatha.htm.

206. JOHN LOCKE, ESSAY CONCERNING HUMAN UNDERSTANDING (New York, Dover Publications 1959) (1689) (rejecting the notion that humans are bom with any innate knowledge and instead advocating the tabula rasa theory that the human mind is a blank slate at birth that is subsequently filled by experience which should be guided by empiricism - perception and rational thought), available at http://oregonstate.edu/instruct/phl302/texts/locke/lockel/Essay_contents.htm; JOHN LOCKE, TWO TREATISES OF GOVERNMENT (New York, Cambridge University Press 1988) (1690) (arguing that legitimate government exists only through the consent of the governed and, accordingly, government has no authority to restrict natural rights, such as free expression and a free press, but rather must exercise power to create liberty in society).

207. David Hume, Essays, Moral, Political, and Literary (New York, Nelson 1951) (1712) (advocating for a free press, separation of powers, and governments which promote free markets so that industry and the arts could flourish), available at http://econlib.org/library/LFBooks/Hume/hmMPL.html.

208. BARON DE MONTESQUIEU, THE SPIRIT OF LAWS (Chicago Encyclopedia Britannica 1955) (1748) (arguing for a government in which powers are separated into legislative, executive, and judicial branches to provide a system of checks and balances), available at http://www.constitution.org/cm/sol02.htm.

209. FRANÇOIS-MAROE AROUET (Voltaire), Candide (New York, Modern Library 1956) (1759) (using satire, criticizing abuses of people by royalty, the aristocracy, and the clergy, especially intolerance fueled by religious dogma, and arguing in favor of civil rights, especially the right to a fair trial and freedoms of speech and religion), available at http://www.gutenberg.org/files/19942/19942-h/19942-h.htm; see also VOLTAIRE, TREATISE ON TOLERANCE (New York, Cambridge University Press 2000) (1763) (same), available at http://ebooks.gutenberg.us/WorldeBookLibrary.com/treattol.htm.

210. Jean Jacques Rousseau, the Social Contract, or principles of political right (London, G.G.J, and J. Robinson 1791) (arguing that the only form of legitimate government is that which expresses the general will of its citizens), available at http://www.constitution.org/jjr/socon.htm.

211. Cesare Bonesan, Marchese di Beccaria, On Crimes and punishments (New York, Cambridge University Press 1995) (1764) (exploring the legitimate purposes of punishment in a wellordered state), available at http://www.constitution.org/cb/crim_pun.htm.

212. Adam Smith, An Inquiry into the Nature and Causes of the wealth of Nations (New York, The Modern Library 1937) (1776) (advocating for a free market economy and the division of labor within society, guided by the invisible hand of the market, to increase productivity), available at http://econlib.org/library/Smith/smWNCover.html.

213. Immanuel Kant, An Introduction to the Metaphysics of Morals (New York, Cambridge University Press 1998) (1797) (asserting that the sources and limits of human knowledge can be understood through an epistemology of both "Reason'Vrationality and through experience with cause and effect, and that the free pursuit of such thought would produce practical and moral laws which dictate what ought to be done), available at http://www.constitution.org/kant/ntrometa.htm.

214. Jeremy Bentham, An introduction to the Principles of Morals and Legislation (London, Athlone Publishers 1970) (1789) (rejecting the notions of natural law and natural rights, and instead, using utilitarian philosophical principles, arguing in favor of: economic freedom; individual freedom, including for women, children, and sexual minorities; the separation of church and state; and the abolition of slavery, corporal punishment, and capital punishment), available at http://econlib.org/library/Bentham/bnthPML.html.

215. Given the fuzziness of the boundaries of the Enlightenment, John Stuart Mill may or may not be considered an enlightenment philosopher since he wrote in the 19th century. Some scholars believe the period ended with the American and French Revolutions while others argue that the Enlightenment continued through the mid-1800s. See, e.g., PETER Gay, 1 THE ENLIGHTENMENT: AN INTERPRETATION (1966). This debate notwithstanding, Mill's works built significantly upon Enlightenment principles, often within the context of the common law tradition. They are, therefore, worthy of special mention for their contribution to our modem understanding of privacy concepts. See JOHN STUART MILL, ON LIBERTY (Princeton, N.J., Princeton University Press 1999) (1859) (arguing that legitimate government should not regulate morality, but rather should only exercise the restrictive power of the state to prevent an actor from causing harm to others), available at http://www.constitution.org/jsm/liberty.htm; JOHN STUART Mill, The Subjugation OF Women (Prometheus Books 1986) (1861) (perhaps co-authored with his wife, Harriet Taylor Mill) (arguing, on utilitarian grounds, for the emancipation of women on three primary grounds: the greater good of society through the establishment of a free market for women's services; the enrichment of relationships for men by having educated women engage them on their intellectual level; and the natural rights of women to pursue their individual development), available at http://www.constitution.org/jsm/women.htm.

216. Francesca Bignami, European versus American Liberty: A Comparative Privacy Analysis of Antiterrorism Data Mining, 48 B.C. L. REV. 609, 680 (2007) (noting that both concepts- freedom from scrutiny of others and autonomy to make decisions - stem from the common Enlightenment heritage).

217. HOBBES, supra note 205, at Ch. XIV, ¶ 1.

218. Sheldon Gelman, "Life" and "Liberty": Their Original Meaning, Historical Antecedents, and Current Significance in the Debate Over Abortion Rights, 78 MlNN. L. REV. 585, 615-16 (1994).

219. HOBBES, supra note 205, at Ch. XIII, ¶ 9.

220. Gelman, supra note 218, at 616-17.

221. Id. at 615; see also HOBBES, supra note 205, at Ch. XVTII (arguing that citizens are bound to their ruler).

222. See Arthur Kuflik, The Inalienability of Autonomy, 13 PHIL. & PUB. AFF. 271, 277 (1984).

223. Gelman, supra note 218, at 621-22.

224. Locke, Two Treatises of Government, supra note 206, at 98 (Ch. II, § 6).

225 . Gelman, supra note 218, at 621.

226. See LOCKE, Two TREATISES OF Government, supra note 206, at 186-200 (Ch. XIX).

227. Gelman, supra note 218, at 636; see also Locke, Two Treatises OF GOVERNMENT, supra note 206, at 132-35 (Ch. VIl, § 88-94) (noting how laws enacted by governments infringe on an individual's liberty).

228. See, e.g., J.L. Hill, The Five Faces of Freedom in American Political and Constitutional Thought, 45 B.C. L. REV. 499, 564-65 (2004).

229. Id. at 568; see MILL, ON LIBERTY, supra note 215, at Ch. III.

230. See, e.g., Stanley Elkins & Eric McKitrick, The Founding Fathers: Young Men of the Revolution, 76 POL. SCI. Q. 181 (1961).

231. Thomas Paine, Common Sense § 3 K 47 (1776), available at http://www.ushistory.org/paine/commonsense/singlehtml.hto.

232. See generally CRAIG NELSON, THOMAS ?????: ENLIGHTENMENT, REVOLUTION, AND THE BlRTH OF MODERN NATIONS (2006).

233. See generally MORTON White, The PHILOSOPHY OF THE AMERICAN REVOLUTION (1 978).

234. Danielle Keats Citron & Leslie Meltzer Henry, Visionary Pragmatism and the Value of Privacy in the Twenty-First Century, 108 MlCH. L. REV. 1107, 1109-10 (2010) (quoting DANIEL J. SOLOVE, UNDERSTANDING PRIVACY 1 (2008)); see also Solove, supra note 1 1, at 477-78 ("Privacy is a concept in disarray. Nobody can articulate what it means. As one commentator has observed, privacy suffers from 'an embarrassment of meanings.'").

235. SOLOVE, supra note 234, passim; Gormley, supra note 9, passim.

236. Gormley, supra note 9, at 1340.

237. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 193 (1890).

238. See THOMAS M. COOLEY, COOLEY ON TORTS 29 (2d ed. 1888).

239. Warren & Brandeis, supra note 237, at 195.

240. Id. at 193-95.

241. Id. at 195-96.

242. Id. at 196-213 ("We must therefore conclude that the rights, so protected, whatever their exact nature, ... are rights as against the world. . . . The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relations, domestic or otherwise.").

243. Neil M. Richards & Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEO. L.J. 123, 146-47 (2007) (citing Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N. Y. 1902)).

244. Id. at 147 (quoting NEW YORK ClV. RIGHTS LAW § 50-51 (McKinney 1976 & Supp. 1990)).

245. See Pavesich v. New England Life Insurance Co., 50 S.E. 68 (Ga. 1905).

246. Id. at 69-70.

247. Richards & Solove, supra note 243, at 147-48; Gormley, supra note 9, at 1354.

248. Richards & Solove, supra note 243, at 148.

249. Id. at 148-49 (citing William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 389 (I960)); see also Gormley, supra note 9, at 1356.

250. Richards & Solove, supra note 243, at 150.

251. Id. at 151.

252. Id. at 152.

253. Id. at 152-53.

254. Id. at 157.

255. Id.

256. 277 U.S. 438 (1928), overruled by Katz v. United States, 389 U.S. 347 (1967).

257. Olmstead, 277 U.S. at 457 ("The insertions were made without trespass upon any property of the defendants.").

258. Id. at 478 (Brandeis, J., dissenting).

259. 389 U.S. 347 (1967).

260. Daniel J. Solove, Conceptualizing Privacy, 90 CAL. L. REV. 1087, 1 102 (2002) ("[W]hile the right to be let alone has often been invoked by judges and commentators, it still remains a rather broad and vague conception of privacy.") (citation omitted).

261. Anua L. Allen, Uneasy Access: Privacy for Women in a Free Society 7 (1988).

262. Gormley, supra note 9, at 1358 (quoting Paxton's Case, Superior Ct. 1761, as reprinted in Quincy's Mass. Rep. 1761-62, 51 (1865)).

263. Leonard W. Levy, Origins of the Fourth Amendment, 1 14 POL. Sci. Q. 79, 80 (1999).

264. Id. at 82.

265. Id.

266. Id. at 93-94.

267. "No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." U.S. CONST, amend. III.

268. Gormley, supra note 9, at 1359-60 (alterations in original) (citing THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OFTHE States of the American Union 299-300 (1st ed. 1868)).

269. 116 U.S. 616, 630 (1886) (describing the "sanctity of a man's home and the privacies of life" when condemning an unlawful seizure).

270. Gormley, supra note 9, at 1375.

271. 254 U.S. 325 (1920).

272. Id. at 327.

273. Id. at 335 (Brandeis, J., dissenting).

274. See supra notes 237-42 and accompanying text.

275. Gormley, supra note 9, at 1377.

276. 3 19 U.S. 141(1943).

277. Gormley, supra note 9, at 1377-78 (citing Martin, 319 U.S. at 150 (Murphy, J., concurring); Id. at 152-53 (Frankfurter, J., dissenting); Id. at 154-57 (Reed, J., dissenting)).

278. 341 U.S. 622 (1951).

279. Id. at 644.

280. Gormley, supra note 9, at 1379-81 (citing Packer Corp. v. Utah, 285 U.S. 105 (1932); Kovacs v. Cooper, 336 U.S. 77 (1949)).

281. 394 U.S. 557(1969).

282. Id. at 565.

283. Gormley, supra note 9, at 1383 (citing Cohen v. California, 403 U.S. 15 (1971) (upholding the right of a war protestor to display a swear word on his jacket); Org. For a Better Austin v. Keefe, 402 U.S. 415 (1971) (upholding peaceful distribution of leaflets advocating racial equality); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) (upholding the showing of an R-rated movie in a drive-in theater even though partial nudity could be viewed by passers-by)).

284. See id. at 1387 (noting that privacy trumps free speech interests "where the privacy interest of the listener is the strongest (i.e., in the home)").

285. Id. For a discussion of the priority of the First Amendment rights of the press over the priority interests of public figures, see id. at 1387-91 (citing, Florida Star v. B.J.F., 491 U.S. 524 (1989); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Curtiss Publishing Co. v. Butts, 388 U.S. 130 (1967); New York Times v. Sullivan, 376 U.S. 254 (1964)). See generally Peter B. Edelman, Free Press v. Privacy: Haunted by the Ghost of Justice Black, 68 TEX. L. REV. 1 195 (1990); Diane L. Zimmerman, Requiem for a Heavyweight: A Farewell to Warren and Brandeis' s Privacy Tort, 68 CORNELL L. REV. 291 (1983).

286. Gormley, supra note 9, at 1391.

287. 478 U.S. 186, 190-92 (1986) (upholding the constitutionality of sodomy laws despite the Court having previously invalided laws that impinged fundamental rights related to procreation and family life, because sodomy was not a fundamental right).

288. 539 U.S. 558, 577 (2003) (overruling Bowers v. Hardwick and finding sodomy laws unconstitutional); see also Henry F. Fradella, Lawrence v. Texas: Genuine or Illusory Progress for Gay Rights in America, 39 CRIM. L. BULL. 597 (2003) (explaining how the Lawrence decision did not fit into the "fundamental rights" framework of prior privacy decisions of the U.S. Supreme Court).

289. See, e.g., Helen J. Knowles, From a Value to a Right: The Supreme Court's Oh-SoConscious Move from 'Privacy' To 'Liberty', 33 OHIO N.U. L. REV. 595 (2007); Erin Daly, The New Liberty, 11 WlDENER L. REV. 221 (2005).

290. Gormley, supra note 9, at 1391; see also, Jamal Greene, The So-Called Right to Privacy, 41 U.C. Davis L. Rev. 715, 720 (2010) (using the heading, "A Right Is Born: Griswold v. Connecticut"). But see Cass R. Sunstein, Liberty after Lawrence, 65 OHIO St. L.J. 1059, 1061-63 (2004) (arguing that Lawrence could be viewed not as embracing autonomy as liberty, but rather as the simple invalidation of sodomy laws on desuetude grounds, thereby implicating more of a procedural process holding than a substantive one).

291. 381 U.S. 479 (1965).

292. G Sidney Buchanan, The Right of Privacy: Past, Present, and Future, 16 OHIO N.U. L. REV. 403,415(1989).

293. 262 U.S. 390 (1923).

294. Id. at 400. It should be noted that twenty-one other states passed similar laws in the wake of World War I. See Susan E. Lawrence, Substantive Due Process and Parental Rights: From Meyer v. Nebraska to Troxel v. Granville, 8 J. L. & FAM. STUD. 71, 73-74 (2006).

295. Meyer, 262 U.S. at 401.

296. See William G Ross, A Judicial Janus: Meyer v. Nebraska in Historical Perspective, 57 U. ClN. L. REV. 125, 130-34 (1988) (discussing the relationship between language laws and the increasing hostility toward German immigrants).

297. Meyer, 262 U.S. at 399.

298. Id.

299. Ross, supra note 296, at 185.

300. 262 U.S. 404 (1923).

301. Id. at 409.

302. 268 U.S. 510(1925).

303. Id. at 530 (quoting Or. L. § 5259 (1923)).

304. Id. at 532.

305. Id. at 534-35.

306. 316 U.S. 535 (1942).

307. Id. at 536, 538.

308. Id. at 538.

309. Id. at 541.

310. 357 U.S. 116(1958).

311. 378 U.S. 500 (1964).

312. Kent, 357 U.S. at 125; see also Aptheker, 378 U.S. at 505 (quoting Kent to invalidate a statute restricting the right of travel).

313. See Connecticut's Birth Control Law: Reviewing a State Statute Under the Fourteenth Amendment, 70 YALE L. J. 322, 322 (1960) (noting that "thirty-four states and the federal government [had enacted] some form of birth control legislation"); see also Debora Spar & Anna Harrington, Selling Stem Cell Science: How Markets Drive Law Along the Technological Frontier, 33 AM. J.L. & MED. 54 1 , 544 (2007) ("[T]wenty-four states explicitly passed laws forbidding contraception and advertising or information related to birth control.").

314. Griswold v. Connecticut, 381 U.S. 479, 480 (1965) (quoting CONN. GEN. STAT. REV. § 5332(1958)).

315. Id. at 480.

316. Id.

317. Id. at 482-83.

318. Id. at 483 (quoting NAACP v. Alabama, 377 U.S. 288, 307 (1964) (citation omitted)).

319. Id. at 484.

320. Id. at 485-86 (quoting NAACP v. Alabama, 377 U.S. 288, 307 (1964) (citation omitted)).

321. Id. at 486.

We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Id.

322. 405 U.S. 438 (1972).

323. Id. at 438.

324. Id. at 453.

325. 431 U.S. 678, 681-82 (1977).

326. 388 U.S. 1 (1967).

327. Id. at 2.

328. Id. at 12 (quoting Skinner v. State of Oklahoma, 316 U.S. 535, 541 (1942) (citation omitted)).

329. Buchanan, supra note 290, at 454.

330. 434 U.S. 374 (1978).

331. Hat 383.

332. 410 U.S. 113(1972).

333. Id. at 152.

334. Id. at 153.

335. Id. at 163-66.

336. 505 U.S. 833 (1992).

337. Id. at 874.

338. E.g., Hodgson v. Minnesota, 497 U.S. 417 (1990); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502 (1990); Webster v. Reprod. Health Servs., 492 U.S. 490 (1989); Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747 (1986); , Simopoulos v. Virginia, 462 U.S. 506 (1983); Planned Parenthood Assn. v. Ashcroft, 462 U.S. 476 (1983); Harris v. McRae, 297 U.S. 323 (1980); Bellotti v. Baird II, 443 U.S. 662 (1979); Planned Parenthood v. Danforth, 428 U.S. 52 (1976).

339. E.g., Gonzales v. Carhart, 550 U.S. 124 (2007); Ayotte v. Planned Parenthood, 546 U.S. 320 (2006); Stenberg v. Carhart, 530 U.S. 914 (2000).

340. Bowers v. Hardwick, 478 U.S. 186 (1986).

341. Buchanan, supra note 290, at 486.

342. Bowers, 478 U.S. at 190.

343. Pierce v. Soc'y of Sisters of the Names of Jesus and Mary, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).

344. Loving v. Virginia, 388 U.S. 1 (1967).

345. Skinner v. Oklahoma ex rei. Williamson, 316 U.S. 535 (1942).

346. Bowers, 478 U.S. at 199-214 (Blackmun, J., dissenting); Id. at 214-20 (Stevens, J., dissenting).

347. E.g.,HenryF. Fradella, Legal, Moral, and Social Reasons for Decriminalizing Sodomy, 18J. CONTEMP. CRIM. JUST. 279 (2002); Harvard Law Review, Note, Right to Privacy and Consensual Sodomy: Bowers v. Hardwick, 100 HARV. L. REV. 210, 218-19 (1986).

348. Brett J. Williamson, Note, The Constitutional Privacy Doctrine After Bowers v. Hardwick; Rethinking the Second Death of Substantive Due Process, 62 S. CAL. L. REV. 1 297, 1317 (1989).

349. 539 U.S. 558 (2003).

350. Id. at 567.

351. Id. at 562.

352. Id. at 567.

353. See, e.g., Knowles, supra note 287, passim; Daly, supra note 287, passim.

354. Gormley, supra note 9, at 1422.

355. Id.

356. Id. at 1423-24 (internal citations omitted). Today, ten state constitutions specifically guarantee a right to privacy: ALASKA CONST, art. 1, § 22 (amended 1972); Ariz. CONST, art. 2, § 8; CAL. CONST, art. I1 § 1; FLA. CONST, art. 1, § 23 (amended 1998); Haw. Const, art. I, §6; III. Const. art. I, § 6; LA. CONST, art. I, § 5; MONT. CONST, art. II, § 10 (amended 1971); S.C. CONST, art. I, § 10; Wash. Const, art. I, § 7.

357. Gormley, supra note 9, at 1425.

358. Id. at 1425-26.

359. Id. at 1426-27.

360. See, e.g., Paul M. Schwartz, Preemption and Privacy, 118 YALE L.J. 902 (2009) (discussing state laws designed to prevent data security breaches, restrict the use of social security numbers, assist identify theft victims, curtail surveillance, and more).

361. See, e.g., Maya Ganguly, Comment, Private Pictures, Public Exposure: Papparazzi, Compromising Images, and Privacy Law on the Internet, 26 Wis. INT'L L.J. 1 140 (2009); Patrick J. Alach, Paparazzi and Privacy, 28 LOY. L.A. ENT. L. REV. 205 (2007-2008).

362. See, e.g., Susan W. Brenner & Megan Rehberg, "Kiddie Crime"? The Utility Of Criminal Law in Controlling Cyberbullying, 8 FIRST AMEND. L. REV. 1 (2009); Katherine T. Kleinthenst, Theresa M. Coughlin & Jill K. Pasquarella, Computer Crimes, 46 AM. CRIM. L. REV. 315 (2009).

363. William L. Prosser, Handbook on the Law of Torts (4th ed. 1971).

364. SOLOVE, supra note 234, at ix.

365. William P. Bloss, Transforming U.S. Police Surveillance in a New Privacy Paradigm, 10 POLICE Pract. & RES. 225, 236 (2009).

366. Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at "Understandings Recognized and Permitted by Society," 42 DUKE L.J. 727 (1993).

367. Id. at 736.

368. Id.

369. Id.

370. Id.

371. See JOSEPH E. SCHUMACHER, MEASURING ATTITUDES TOWARD CRIME CONTROL: THE ATTITUDES TOWARD Crime CONTROL SCALES, Paper Presented at the American Psychological Association Annual Conference (Aug. 1991).

372. Slobogin & Schumacher, supra note 366, at 733-34.

373. Id. at 734.

374. Id.

375. Id at 735 (citing Herbert L. Packer, Two Models of the Criminal Process, 1 13 U. PA. L. REV. 1,5-23(1964)).

376. Id. at 738-74.

377. Id. at 738.

378. Id. at 740 (citing United States v. White, 401 U.S. 745, 751 (1971)).

379. Slobogin & Schumacher, supra note 366, at 740.

380. Id. at 740-41.

381. Id. (citing Oliver v. United States, 466 U.S. 170, 174 (1984)).

382. Id. (citing United States v. Place, 462 U.S. 696, 707-08 (1983)). But compare Horton v. Goose Creek Indep. School Dist, 690 F.2d 470, 479 (5th Cir. 1982), cert, denied, 463 U.S. 1207 (1983) (holding that close-contact random dog sniffs of children in schools constituted searches for Fourth Amendment purposes); B.C. v. Plumas Unified School Dist., 192 F.3d 1260, 1266 (9th Cir. 1999) (holding that close-proximity, but non-contact dog sniffs of students constituted searches for Fourth Amendment purposes), with United States v. Reyes, 349 F.3d 219, 224 (5th Cir. 2003) (holding that a non-contact dog sniff of a person from a distance of approximately four to five feet was not a closeproximity dog sniff and, therefore, did not implicate the Fourth Amendment).

383. See, e.g., Kris Henning & Lynette Feder, Criminal Prosecution of Domestic Violence Offenses: An Investigation of Factors Predictive of Court Outcomes, 32 CRIM. JUST. & BEHAV. 612 (2005); Brian H. Bomstein, The Ecological Validity of Jury Simulations: Is the Jury Still Out?, l'i LAW & HUM. BEHAV. 75, 88 (1999) (highlighting the problems associated with generalizing behavior patterns from data received from mock jury simulations).

384. Bornstein, supra note 372, at 88; see also Crystal M. Beckham, Beverly J. Spray, & Christina A. Pietz, Jurors' Locus of Control and Defendants' Attractiveness in Death Penalty Sentencing, 147 J. SOC. PSYCHOL. 285 (2007); Geoffrey P. Kramer & Norbert L. Kerr, Laboratory Simulation and Bias in the Study of Jury Behavior: A Methodological Note, 13 LAW & HUM. BEHAV. 89 (1989).

385. Slobogin & Schumacher, supra note 366, at 736.

386. Supra Part III.D.3.

387. Id. at 737.

388. Id. at 738.

389. 392 U.S. 1 (1968).

390. Slobogin & Schumacher, supra note 373, at 738.

391. Infra Part V.A.1.

392. These institutions included: a large, public, urban, comprehensive university in southern California; a mid-size public, rural, comprehensive university in Virginia; a mid-size, public, urban research university in New York City; a large, public, suburban, research university in Arizona; a small, private, urban, liberal arts college in Massachusetts; a mid-size, public, suburban, liberal arts college in New Jersey; a small, public, rural, comprehensive university in Wisconsin; a large, private, urban, research university in Washington, D.C.; a small, Catholic, teaching college in Wisconsin; a large, Catholic, comprehensive university in Pennsylvania; and a mid-sized, public, comprehensive university in Michigan.

393. Supra Part II.?.2.

394. Supra Part ILB. 1.

395. Supra Part II.B.2.

396. Id.

397. See, e.g., Stephen R. Briggs & Jonathan M. Cheek, The Role of Factor Analysis in the Development and Evaluation of Personality Scales, 54 J. PERSONALITY 106 (1986).

398. Id.

399. Because these bivariate analyses required fifty-two different regression models, the results are omitted here. Rather, all of these variables were then included in multivariate linear regression models predicting expectations of privacy across multiple privacy domains, the results of which are reported in Table 8.

400. After running the multivariate models presented in Table 8, other models were run in an attempt to increase the explanatory power and/or to improve upon the parsimony of the models. The first of these models were run with three demographic factors included (sex, age, and race/ethnicity), as well as the independent variables that had bivariate associations with the dependent variable measuring a p-value of .10 or less. However, none of those models had higher adjusted R-squared values, and they did not show significant differences in the slope coefficients values or p-values for the key covariates. The second set of models included only the independent variables that were at or near statistical significance in the original multivariate models. Once again, these models did not improve upon the explanatory power of the overall models. Therefore, the results of these additional models are not reported here.

401. See supra Part VI.B.1.

402. 470 U.S. 753(1985).

403. 129 S. Ct. 2633 (2009).

404. See Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470 (5th Cir. 1982); B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260 (9th Cir. 1999) (same for a close-proximity, but non-contact dog sniffs of students); cf. United States v. Reyes, 349 F.3d 219 (5th Cir. 2003).

405. 515 U.S. 646 (1995).

406. 532 U.S. 318 (2001).

407. 384 U.S. 757(1966).

408. Compare Wyoming v. Houghton, 526 U.S. 295, 302 (1999), with Owens v. Commonwealth, 244 S.W.3d 83, 87-88 (Ky. 2008), and People v. Hart, 86 CaI. Rptr. 2d 762 (CaI. Ct. App. 1999).

409. 489 U.S. 602(1989).

410. 489 U.S. 656 (1989).

411. Supra Part VLB. 1.

412. 267 U.S. 132(1925).

413. 556 U.S. 332 (2009).

414. Texas v. Brown, 460 U.S. 730 (1983); United States v. Taylor, 90 F.3d 903 (4th Cir. 1996).

415. See United States v. Humphries, 372 F.3d 653 (4th Cir. 2004).

416. 395 U.S. 752(1969).

417. 533 U.S. 27 (2001).

418. 480 U.S. 294 (1987).

419. 466 U.S. 170 (1984).

420. 476 U.S. 207 (1986).

421. 488 U.S. 445 (1989).

422. 469 U.S. 325 (1985).

423. See supra Part VLB. 1.

424. 389 U.S. 347 (1967).

425. Codified as amended at 18 U.S.C. § 2510-22 (2010).

426. State v. Canal, 773 N.W.2d 528 (Iowa 2009). It should be noted that the Canal case did not involve a Fourth Amendment challenge. Rather, the issue before the court was whether the evidence was sufficient to support a finding that the "sexted" image was obscene. In the question asked of survey respondents, however, we altered the facts of Canal to mirror those of some reported cases in recent news stories in which school officials searched students' cell phones and turned over sexted images to police for use in criminal prosecutions. See, e.g., Miller v. Skumanick, 605 F. Supp. 2d 634 (M.D. Pa. 2009). In doing so, our fact pattern created state action akin to that found in New Jersey v. T.L.O., 469 U.S. 325 (1985), and its progeny.

427. 425 U.S. 435 (1976).

428. 460 U.S. 276 (1983).

429. 523 F.3d 941 (9th Cir. 2008).

430. 486 U.S. 35(1988).

431. Supra PartVI.B.3.

432. See generally Lori A. Ringhand, Judicial Activism: An Empirical Examination of Voting Behavior on the Rehnquist Natural Court, 24 Const. Comment. 43 (2007) (examining so-called "liberal" and "conservative" voting trends on the Rehnquist Supreme Court).

433. David Jacobs & Jason T. Carmichael, Ideology, Social Threat, and the Death Sentence: Capital Sentences across Time and Space, 83 SOC FORCES 249, 257 (2004).

434. See, e.g., id.; David Jacobs & Ronald Helms, Collective Outbursts, Politics, and Punitive Resources: Toward a Political Sociology of Spending on Social Control, 77 SOC FORCES 1497 (1999).

435. See, e.g., Michael D. Reisig & Mark E. Correia, Public Evaluations of Police Performance: An Analysis Across Three Levels of Policing, 20 POLICING: INT'L J. POLICE STRATEGIES & MGMT. 3 1 1 (1997).

436. John Worrall, Public Perceptions of Police Efficacy and Image: The "Fuzziness" of Support for the Police, 24 AM. J. Crim. JUST. 47 (1999).

437. Kenneth Dowler & Valerie Zawilski, Public Perceptions of Police Misconduct and Discrimination: Examining the Impact of Media Consumption, 35 J. CRIM. JUST. 193 (2007).

438. Supra PartII.A.2.

439. Supra Part ILB. 1.

440. Supra Part II.B.2.

441. 389 U.S. 347 (1967).

442. Id. at 361 (Harlan, J., concurring).

443. Slobogin & Schumacher, supra note 373, at 774.

444. For example, respondents agreed with cases holding that the Fourth Amendment protects against: ordering someone to undergo surgery for purpose of retrieving evidence (X^sup 2^^sub (1)^ = 14. 786; x <.001); using thermal imaging devices to "see" inside a private residence without a warrant (X^sup 2^^sub (1)^ = 64.655; p <.001); conducting intrusive student searches, such as strip searches (X^sup 2^^sub (1)^ = 243.000; p <.001); wire-tapping of landline phones (X^sup 2^^sub (1)^ = 78.962; p<.001) or cell phones (X^sup 2^^sub (1)^ = 272.399; p <.00I); searching outbuildings which lie outside the curtilage of a home (X^sup 2^^sub (1)^ = 201.736;p <.001); and using close-proximity dog sniffs of people to detect the presence of contraband (X^sup 2^^sub (1)^) = 48.516;p<.001).

445. Specifically, respondents disagreed with cases authorizing: random drug testing of student athletes (X^sup 2^^sub (1)^ = 179.263; p <.001); warrantless searches of computer hard-drives at international boarders (X^sup 2^^sub (1)^ = 87.337; p <.001); arrests for minor traffic violations (X^sup 2^^sub (1)^ = 283.549; p<.001); warrantless searches of motor vehicles (X^sup 2^^sub (1)^ = 12.902 ; p <.00J); the applicability of the open fields doctrine to lands when "no trespassing" signs have been posted (X2 \i> = 109.323; ? <.001); low-altitude aerial searches of lands close to private residences (X2Ii) = 17.099; ? <.001); warrantless searches and seizures at a private residence arising from application of either the plain view (X2H) = 41.195;p <.001) or the plain small doctrines (X2H) - 15.919; ? <M01); warrantless access to bank records (X2O) = 293.568; ? <.00i); and the warrantless use of tracking beepers to monitor where a car is driven (X2H) = 324.793; pK.001).

446. For example, respondents agreed with the holding in California v. Greenwood, 486 U.S. 35 (1988), that the warrantless search of garbage placed curbside at a private residence is permissible since there is no reasonable expectation of privacy in such abandoned property (X2O) = 44. 765; ? <.001).

447. For instance, respondents agreed with precedent upholding the random drug testing of certain types of employees, such as train conductors, airline pilots, and police officers, for safety reasons (X2<vj = 259.645; p<.001), as well as precedent upholding searches of student lockers for contraband (X2 o = 82.836; p<.001).

448. Just over half (X2O) = 15.710;p<.001) of respondents agreed with the holding in Chimmel v. California, 395 U.S. 752 (1969).

449. Slobogin & Schumacher, supra note 373, at 775.

450. Id. at 774 (quoting Monrad G. Paulsen, The Exclusionary Rule and Misconduct by the Police, in POLICE Power AND Individual FREEDOM 87, 97 (Claude R. Sowie ed., 1 962)).

451. Id.

452. KAIRYS, supra note 19 at 2.

453. Fradella, supra note 21, at 105.

454. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

455. Fradella, supra note 21, passim.

456. Slobogin & Schumacher, supra note 373, at 774.

457. Id.

458. Id. at 775.

Author affiliation:

Henry F. Fradella,* Weston J. Morrow,** Ryan G. Fischer,*** and Connie Ireland****

Author affiliation:

* J.D., The George Washington University, 1993; Ph.D., Arizona State University, 1997. Professor and Chair, Department of Criminal Justice, California State University, Long Beach.

** Ph.D. student, Arizona State University School of Criminology and Criminal Justice; M.S., California State University, Long Beach, 2010; B.S., California Polytechnic State University, San Luis Obispo, 2008.

*** Ph.D., University of California, Irvine, 2007. Assistant Professor, Department of Criminal Justice, California State University, Long Beach.

**** Ph.D., University of California, Irvine, 2003. Associate Professor, Department of Criminal Justice, California State University, Long Beach.