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Court decisions suggest that in areas where individuals can knowingly be viewed in public, such as on city streets or in parks, they cannot expect the same level of privacy as in their own homes or private spaces. The trend suggests a nuanced approach, recognizing privacy rights against evolving technology and surveillance methods while also considering societal norms and expectations.

Expectation of Privacy

simulated newspaper with a headline about an important expectation of privacy case


Carpenter v. United States (2018): The Supreme Court held that the government's acquisition of Carpenter's cell phone location records was a Fourth Amendment search, and thus required a warrant. This case is significant for its recognition that individuals have a reasonable expectation of privacy in their physical movements as tracked by cell phone location data.


Kyllo v. United States (2001): This case involved the use of thermal imaging technology to detect heat patterns in a home. The Supreme Court ruled that the use of such technology to explore details of the home that would previously have been unknowable without physical intrusion constitutes a search and thus requires a warrant.


Florida v. Riley (1989): The Supreme Court ruled that police do not need a warrant to observe an individual's property from public airspace. In this case, the police used a helicopter to spot marijuana growing in a greenhouse with a partially open roof, which the Court did not consider a violation of the Fourth Amendment.


California v. Greenwood (1988): The Supreme Court held that there is no reasonable expectation of privacy for trash left on the curb for collection in a public place. The Court reasoned that garbage placed at the curbside is readily accessible to animals, children, scavengers, snoops, and other members of the public.


California v. Ciraolo (1986): The Supreme Court ruled that the Fourth Amendment does not prohibit the warrantless aerial observation of a person's backyard. The Court concluded the Fourth Amendment does not require police to obtain a warrant to observe what is visible to the naked eye from public airspace.


Katz v. United States (1967): Katz was convicted based on evidence obtained from a public phone booth. The Supreme Court overturned the conviction, ruling that Katz had a reasonable expectation of privacy in the phone booth, even though it was in a public place. By extension, individuals have a limited expectation of privacy in public places where individuals cannot reasonably expect privacy. This case established the "Katz test" for determining whether a person has a reasonable expectation of privacy, i.e., whether the person has exhibited an actual (subjective) expectation of privacy and whether the expectation is one that society is prepared to recognize as reasonable.


Q: What is 'expectation of privacy'?

A: Expectation of privacy refers to the belief that one is in a place where they can reasonably expect to be safe from unauthorized surveillance or public exposure.


Q: Where is expectation of privacy typically assumed?

The courts have adopted a standard of “reasonable expectation of privacy.” This standard is typically assumed to exist in private spaces such as homes, dressing rooms, restrooms, and offices, or any place where an individual has a reasonable belief that their actions are not being observed.


Q: Do public officials have an expectation of privacy while on duty?

Public officials generally do not have an expectation of privacy while performing their public duties in public areas. However, they may have such an expectation when in private settings or off-duty.


Q: Can I record conversations in public without consent?

Laws vary by state. In many states – but not all – recording conversations in public spaces where participants should not expect privacy is permissible without consent.


Q: Does wiretapping law affect expectation of privacy?

Yes, wiretapping laws often require consent from one or all parties to a conversation, depending on the state, and are related to the expectation of privacy. These laws refer primarily to audio recording. However, if the video recording includes audio and is in a context where the participants have an expectation of privacy, then the same one-party or two-party consent laws would apply to the audio component of that recording.


Q: Is expectation of privacy the same in all public places?

No, expectation of privacy may vary even in public places. For example, a person in a secluded area of a public park may have a reasonable expectation of privacy, whereas someone on a busy street corner would not.


Q: How does expectation of privacy affect First Amendment auditors?

First Amendment auditors must be aware of the expectation of privacy in order to avoid legal issues, ensuring they record only where individuals do not have a reasonable expectation of privacy.


Q: What should I do if someone claims I've violated their expectation of privacy?

If the person recording is confident that they are not violating an expectation of privacy, they may continue recording. However, they should cease recording if they are unsure about the laws regarding expectation of privacy in that jurisdiction.


Q: What if someone in public asks not to be recorded?

First Amendment auditors usually, although not always, have the right to record in public, even when someone asks not to be recorded. Ethically, it may be considerate to respect such requests when possible, especially if the member of the public is not involved in the auditor’s story.


Disclaimer: The information provided in these FAQs is for general informational purposes only and should not be construed as legal advice. For legal advice regarding your specific situation, please consult a licensed attorney.

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