Privacy and Consent over Time: The Role of Agreement in Fourth Amendment Analysis

Like many legal systems around the world, the American system protects the "right to privacy," or, as Samuel Warren and Louis Brandeis famously put it, the "right to be let alone." (1) Although Warren and Brandeis's formulation has profoundly influenced privacy law, a moment of thought reveals that most of us do not wish to be entirely "let alone." An individual wholly surrounded by a cocoon of solitude--for instance, the Russian mathematician who declined the equivalent of a Nobel Prize because he preferred to remain secluded in his mother's St. Petersburg home--is a rarity (and usually at least somewhat of an oddity). (2) Although we do not want our homes or property to be open for inspection at all times, we usually want the police to be able to come in and take a look when we have been victims of a burglary. Because most people want to be "let alone" in some circumstances, but not entirely, the issue of consent to letting another enter into one's own sphere looms large in privacy law. As the late philosopher Joel Feinberg put it, "The root idea ... of privacy is that of a privileged territory or domain in which an individual person has the exclusive authority of determining whether another may enter, and if so, when and for how long.... Within this area, the individual person is ... boss, sovereign, owner." (3) Privacy, far from referring to a sphere within which one is always "let alone," refers to a sphere in which we are allowed to determine who may enter, when, and under what circumstances. The Fourth Amendment to the United States Constitution, protecting "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," (4) guards against government privacy invasions, and, as with other strands of privacy law, consent has long played a significant role. Under the Supreme Court's decision in Schneckloth v. Bustamonte, (5) an individual's voluntary agreement to a search means that no Fourth Amendment violation has occurred; (6) for instance, if a government official comes to my front door or to my car and asks if he or she may search my house or my car, and I say yes, then going ahead and searching my house or my car is permitted under the Fourth Amendment. (7) Today, "there are few areas of Fourth Amendment jurisprudence of greater practical significance than consent searches." (8) Although in some cases agreement to a search might be implied from the surrounding circumstances rather than taking the express form seen in Schneckloth, the doctrine and analysis in this Article focus on express agreement. (9) That one's agreement is relevant--often highly so--to privacy analysis under the Fourth Amendment has been clear for decades. However, as the Fourth Amendment has confronted various features of modern life, significant fault lines around the role of agreement have appeared. The focus of this Article is some of those fault lines--and how we might go about beginning to repair them. I Let us start with two canonical cases from the modern era. Case 1: Imagine that a public university's employee handbook specifies that employees may be subjected to random drug testing at any time in furtherance of the university's drug-free-campus policy. Employees must sign a form their first day on the job indicating that they will submit to such drug testing. Testing is done through laboratory analysis of a urine sample, with the urine sample being produced in the presence of a monitor to preclude the possibility of adulteration of the sample. Has every university employee "consented to" producing a urine sample in the presence of a monitor for purposes of drug testing by virtue of the provision in the employee handbook? Does a Fourth Amendment challenge therefore immediately fail on grounds of such "consent"? Under current law, the answer is clearly "no"; courts do not rely on consent in resolving Fourth Amendment challenges in drug testing cases of the sort just described. …