How China is like a racoon

Teaching a bunch of Facebookers about “expectations of privacy” would be ludicrous enough without having to bring raccoons into it. After dealing with Katz we eventually moved on to California v. Greenwood, in which the Court explains that Americans cannot reasonably expect their garbage to be private because of the raccoons:

Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.

In the game of adjudication, this is an illegal move for lots of reasons, not the least of which is that the habits of scavengers in Laguna Beach are not a proper subject for judicial notice. More fundamentally, it fudges the meaning of “reasonable expectations” to mean something more like “reasonable certainty,” which is well beyond what Katz held or, more to the point, what Harlan took Katz to hold.

If the Fourth Amendment only protects things that we are reasonably certain will remain secret, then nothing is protected because China is the giant raccoon on the planet, snooping through all our stuff. Even though Google pretty much stone-cold busted the Chinese reading our emails or something, the New York Times points out that “Google investigators have been unable to determine the goal: to gain commercial advantage; insert spyware; break into the Gmail accounts of Chinese dissidents and American experts on China who frequently exchange e-mail messages with administration officials; or all three.” Indeed, no one really seems to know much about the cyber-attacks, probably because everyone is too busy uploading nonsense to Facebook.

Thinking about all this, as I get paid to do, I’ve decided that a huge part of the problem with Fourth Amendment analysis is that it is generally taken for granted that “unreasonable” in the text means “not extreme” or “in proportion” or something like that. But that’s just silly. Everything works much better if “unreasonable” is taken to mean “not irrational,” which after all is its primary definition. (I realize that to defend this contention properly I need lots more pages and scores of footnotes. And I’ll eventually get around to that.) Even if America would deem Greenwood’s expectation that no one would rifle through his garbage far from certain, it seems pretty clear that it was not an irrational expectation—like Google’s expectation that China would not try to hijack their servers. Or whatever.