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This paper argues that privacy is and ought to be a fundamental feature of the Fourth Amendment right against unreasonable searches and seizures. In this Article, Colb responds to Professor Orin Kerr’s suggestion in, "The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution", that the Fourth Amendment is primarily aimed at protecting property, and that legislators rather than judges are best equipped to address non-property-related threats to privacy. Colb proposes that the historical linkage between property and privacy has frequently made it unnecessary for courts to distinguish between the two, but that now that threats to privacy can arise in the absence of trespass or other property intrusions – through various forms of electronic surveillance – there is every reason to understand the Fourth Amendment law, which has long protected both property and privacy, as extending beyond the confines of property-related intrusions. Privacy has, of course, already played an important role in the U.S. Supreme Court’s construction of the Fourth Amendment. “Searches” are invasions of, “reasonable expectations of privacy", for example, and warrantless electronic monitoring of telephone calls, under the central case of Katz versus United States, violates the Fourth Amendment, notwithstanding the lack of any physical trespass. Many cases decided on privacy grounds would likely have come out the same way if they were decided on property grounds, and other cases fail to protect privacy. This simply means, first, that property and privacy interests do overlap, (in part because one of the main reasons to protect property is to guard privacy within those spaces); and second, that Fourth Amendment doctrine does not always go as far as it might. Colb observes that as a normative matter, there is no need to choose between courts and legislatures protecting privacy rights, particularly given that Congress can always go further and protect privacy that falls outside the scope of the Supreme Court’s interpretation of the Fourth Amendment. With advancing technology, government has an expanded array of means for invading an individual’s privacy without invading property rights. Colb concludes that the best understanding of the Fourth Amendment and of the Court’s role in guarding the rights protected thereunder calls for an interpretation of the right against unreasonable searches and seizures that includes robust protection for both property and privacy.

A World without Privacy: Why Property Does Not Define the Limits of the Right against Unreasonable Searches and Seizures