The Multiple Dimensions of Privacy : Testing Lay “ Expectations of Privacy ”

In Georgia v. Randolph, the U.S. Supreme Court saw new Chief Justice John Roberts’s first written dissent. In somewhat barbed language, the Chief Justice challenged the majority’s perspective on what properly characterized the defendant’s, and society’s, expectations of privacy. Forty years of Supreme Court jurisprudence has explicitly relied on gauging such expectations, since Justice Harlan indicated in Katz v. United States his “understanding” that “there is a twofold requirement [in determining the scope of Fourth Amendment protection], first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” The dispute in Randolph turned not only on the reasonableness of the defendant’s subjective expectation of privacy, but also on the reasonableness of society’s relatively more objective understandings of social custom and of what might reasonably constitute an inappropriate interfer-