Two Wednesdays ago, on March 22, the Supreme Court decided Georgia v. Randolph, a criminal procedure case where police searched a house owned by two people: one gave the cops permission to enter, the other simultaneously refused. Justice Souter’s majority said that under “widely shared social expectations” about the American home, a co-resident expects domestic privacy in the house, even if he shares it with a roommate.
This is a great victory for Stanford’s Supreme Court Litigation Clinic (which is almost as cool as the Cyberlaw Clinic). Randolph might renew debate about Fourth Amendment privacy in relation to other situations beyond the home, such as cyberspace. Do netizens have widely shared social expectations in the privacy of their e-mail stored by ISPs, or can the police raid their servers and read private messages?
On one hand, Randolph’s holding could be very narrow. First, it explicitly covers only homes, which enjoy special sanctity under American privacy law. Second, it involves the specific scenario of the “threshold colloquy” at the door, where the cops happen to find two co-owners at the front door, and each says a different thing. If an objecting resident happens to be in the shower at the time, he’s out of luck.
But Randolph leaves some issues hanging – at least with respect to realspace. Stanford’s Professor Weisberg mentioned in class that the case doesn’t clarify what “widely shared social expectations” are. Also, do the cops have to look around the front door to see if any residents who might object would want to join the colloquy? What if there are three roommates instead of two, and one is absent and has incriminating property? And do social expectations depend on what most people think the cops will do, or what our roommates will do?
Our Director recently wrote in Wired that even though Randolph might apply strictly to homes, the concept of shared social expectations should also insulate e-mail from law enforcement searches. As our notions of privacy grounded in real property become antiquated, the colloquy will surely continue.