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Recently, in United States v. Jones, the Court held that the monitoring of a GPS affixed by the government onto the defendant’s car constituted a Fourth Amendment search. As explained in my article, this decision represents a significant departure from the Court’s post-Katz v. United States jurisprudence and, more importantly, indicates the Court’s discontent with the reasonable expectation of privacy test, as it has been applied to define searches since Katz, making it a most opportune moment to help develop this area of law. In this article, I propose a more balanced approach to defining a Fourth Amendment search under Katz that takes into account both the individual’s conduct in seeking to maintain privacy, and the government’s conduct in seeking to breach that privacy. In doing so, I turn by way of analogy to a most unexpected, yet compellingly relevant, source for guidance: the law of rape. While at first blush, these two areas of law may seem unrelated, “in each context, one entity asserts a claim of power over another, and uses that power to extract from the victim that which it seeks to obtain.” The Court’s interpretation of the reasonable expectation of privacy test suffers from the very same defects that rape reformers identified and sought to change in the traditional understanding of the offense of rape: almost exclusive focus on the victim, including an utmost resistance requirement and an overly broad understanding of consent, and an excessively permissive view of the perpetrator’s force. Current search law also places almost exclusive scrutiny on the conduct of victims, requiring what amounts to utmost resistance, and also exhibits an overly broad conception of consent and an unrealistic view of force, which results in the Court finding, more often than not, that government surveillance does not constitute a search and is, therefore, completely unregulated by the Fourth Amendment. Rape reformers sought to reform rape law to achieve balance between men and women, improve male behavior, and promote women’s autonomy. With the similar goals of promoting balance and equality, improving police behavior, and promoting individual autonomy, I argue for parallel reforms in the law of searches, urging that the resistance requirement be lowered to one of reasonable resistance, that consent be viewed more narrowly, and that the conduct of police be realistically examined, in light of legal and social norms. Finally, I lodge these reforms in Katz, arguing that Katz not only supports, but requires the more balanced, conduct-oriented approach I propose.

Show and Tell, Seek and Find: A Balanced Approach to Defining a Fourth Amendment Search and the Lessons of Rape Reform