Expectation of privacy

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Expectation of privacy is a concept which is crucial in the defining of the scope of the applicability of privacy laws.

A subjective expectation of privacy is an opinion of a person that a certain place or situation is private.

An objective, legitimate or reasonable expectation of privacy is an expectation of privacy recognized by society and protected by law.

According to the United States law, examples of places where a person has a reasonable expectation of privacy are person's residence and public places which specifically provided to ensure privacy, such as public restrooms, private portions of jailhouses,^[1] or a phone booth.^[2]^[3]

In general, one cannot have an expectation of privacy in public places, with the exceptions mentioned above. A popular example is denial of privacy for garbage left for collection in a public place.^[1]

While a person may have a subjective expectation of privacy in his car, it is not always an objective one, unlike person's home, according to the US law.^[4]

1 United States
- 1.1 Privacy and search in the US law
2 Canada
3 See also
4 References

[edit] United States

The privacy laws of the United States have the notion of "person's open fields", a part of person's possessions where a person does not have an objective expectation of privacy.^[5]

[edit] Privacy and search in the US law

The expectation of privacy is crucial to distinguish a legitimate, reasonable police search and seizure from an unreasonable one.

In Katz v. United States, 389 U.S. 347 (1967) Justice Harlan issued a concurring opinion articulating the two-part test later adopted by the U.S. Supreme Court as the test for determining whether a police or government search is subject to the limitations of the Fourth Amendment: (1) governmental action must contravene an individual's actual, subjective expectation of privacy; (2) and that expectation of privacy must be reasonable, in the sense that society in general would recognize it as such.

In order to meet the first part of the test, the person from whom the information was obtained must demonstrate that they, in fact, had an actual, subjective expectation that the evidence obtained would not be available to the public. In other words, the person asserting that a search was conducted must show that they kept the evidence in a manner designed to ensure its privacy.

The first part of the test is related to the notion "in plain view". If a person did not undertake reasonable efforts to conceal something from a causal observer (as opposed to a snoop), then no subjective expectation of privacy is assumed. ^[6]

The second part of the test is analyzed objectively: would society at large deem a person's expectation of privacy to be reasonable? If it is plain that a person did not keep the evidence at issue in a private place, then no search is required to uncover the evidence. For example, there is generally no search when police officers look through garbage because a reasonable person would not expect that items placed in the garbage would necessarily remain private.^[7] Similarly, there is no search where officers monitor what phone numbers an individual dials,^[8] although the Congress has enacted laws which restrict such monitoring. The Supreme Court has also ruled that there is no objectively reasonable expectation of privacy (and thus no search) when officers hovering in a helicopter 400 feet above a suspect's house conduct surveillance.^[9]